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P U B L I C O F F I C E R S L A W – D E L E O N R E V I E W E R | 1

L A W O N P U B L I C O F F I C E R S

Chapter One DEFINITIIONS, DISTINCTIONS, AND CLASSIFICATIONS

Meaning of office. Position or function by virtue of which a person has some employment in the affairs of another, whether selected by appointment or election, whether appointed during the pleasure of appointing power or for fixed term. Meaning of public office. Right, authority, and duty created and conferred by law, by which for a given period, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. It is also a charge, station or employment conferred by appointment or election by a government. Purpose and nature of public offices. 1. For the common good and not for profit, honor, or private interest 2. In the interest and for the benefit of the people, and belongs to them. Its nature is inconsistent with either a property or contract. It is a responsibility not a right. Public office, as a public trust. 1. Regarded as public servants – powers delegated are held in trust for the people and are to be exercised in behalf of the government or of all citizens. Such trust extends to all within the range of duties pertaining to his office. 2. Subject to highest standards of accountability and service Const., Art. 11, sec. 1: “Public officer is a public trust. Public officers and employees must at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.” It exacts from him standards not generally demanded or required from ordinary citizens. A public officer should at all times, uphold public interest over his personal interest. Upon taking their oath, he binds himself to perform the duties of their office faithfully and to use reasonable skill and diligence. The only justification for his continuance is his ability to advance public ends and contribute to the public welfare. Public office, not property. 1. Subject to removal or suspension according to law – it is not the property of the holder. He is not denied due process when the office is abolished before the expiration of his term; or by removal or suspension according to law; or by passing a

statute limiting or reducing his compensation. 2. Without vested right in any public office – no one has a vested right over any public office he holds, much less a vested right to an expectancy of holding public office. Except Constitutional offices (special immunity as regards salary and tenure), no one has any vested right to an office or its salary. 3. Right is in the nature of privilege entitled to protection – right to office is recognized as a privilege entitled to the protection of the law. When there is a dispute concerning one’s constitutional right to security of tenure, public office is deemed analogous to property in a limited sense. 4. Right is personal to him – it is not a property which passes to his heirs upon death. It cannot be inherited. Public office, not a contract. 1. Creates no contractual relation between holder and the public – the incumbent is not under contract so as to withdraw his tenure, salary, and the like, from the control of the legislature, or to preclude the legislature from abolishing the office. 2. Exists by virtue of some law – it is not a natural right. It exists only because and by virtue of some law expressly or impliedly creating and conferring it. 3. Generally entitles holder to compensation – entitled to compensation for the performance of his public duties when the law attaches it to the office. If no salary is provided by law, incumbent is presumed to have accepted it without pay and cannot recover anything for service rendered by him. Public office and public contract distinguished.

Public office Public contract

As to creation Incident of sovereignty From will of the contracting parties, subject to limitations of law

As to object Carrying out of sovereign as well as governmental functions

Obligations imposed only upon persons who entered the same

As to subject matter and scope

Tenure, duration and continuity, and the duties connected therewith, which are generally continuing and permanent

Limited in duration and specific in objects: terms define and limit the rights and obligations of the parties, neither may depart therefrom without consent of the other


Public office and public employment distinguished.

Public office Public employment

Key considerations Every public office may be an employment

Every public employment is not an office

Manner of creation and nature of duties

1. Created by law, 2. With duties involving the exercise of some portion of the sovereign power 3. Public is concerned in the performance of which

1. Created by contract of employment 2. Lacks one or more of the considerations under public office

Essential elements of a public office. 1. Created by the constitution, law or agency, to which the power to create was delegated 2. Invested with an authority to exercise some portion of the sovereign power for public interest 3. Powers and functions are defined by the constitution, law or legislative authority 4. Duties are performed independently, without control of a superior power other than law, unless they are those of a subordinate 5. Continuing and permanent in nature Note: Compensation is not an essential element and is merely incidental to public office Creation of public office. 1. Generally – constitutional or statutory provision or by authority conferred by it 2. By congress – except by the constitution, creation is primarily a legislative function

a. By exigencies of government, legislature may create and define new duties b. When created by the legislature, it may prescribe the mode of filling the office, powers and duties, abolishment

3. By the President – offices in the executive department, President’s power of control may justify him to inactivate functions of a particular office. The President has continuing authority to reorganize administrative structure of the Office of the President, including transfer of functions of the other executive department offices to the Office of the President.

Modification or abolition of public offices. Power to create involves power: 1. To modify 2. To abolish 3. To fix the number of positions and salaries of the holders. The power is inherently legislative. 1. Created by Congress – Congress may control, modify, consolidate or abolish the office whenever such course may seem necessary, expedient or conducive to the public good, but subject to Constitutional limitations. When the public need ceases to exist, there is no obligation to continue the office. It is solely within the judgment of the governing authority to determine abolishment. 2. Created by the Constitution – may be modified or abolished by the people through a constitutional provision. Such are beyond the power of the legislature to alter or discontinue. The mere mention of an office in the Constitution does not necessarily endow an office with constitutional status. Exercise of sovereign powers and functions. 1. Implied authority conferred by law must involve exercising some portion of the sovereign power of the State in making, executing or applying the law, to the position a public office. 2. The duties of the office define whether or not one is a public officer, and the extent of his authority is not material. Effect: Official acts of a public officer enjoy the presumption of regularity, and the presumption does not apply when the acts are not within the duties specified by law, especially when this acts pertain or belong to another entity, agency or public official. Tenure and duration. The following elements are not material in defining a public office: 1. Existence of definite tenure 2. Continuance of office holder – whether the duties attached to the position continue though the office holder was changed. 3. Permanence of office – whether there can be but one act or series of acts to be done. But something more permanent than a single transaction or transitory act is commonly required to make the position a public office


Meaning of officer/public officer/employee. 1. Public officer

a. One who holds a public office. b. An officer, required by law to be elected or appointed, who has a designation or title by law, and who exercises functions concerning the public, assigned to him by law.

2. Under the Admin Code, employee is any person in the service of the government

a. Officer – person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government b. When with reference to a person having authority to do a particular act or perform a particular function, officer includes any government employee having authority to do the act or exercise that function

Officer and employee distinguished. 1. In the law of public officer – officer:

a. Of greater importance b. Dignity and independence of his position c. Required to take an official oath or sometimes give an official bond d. With liability to be called to account as a public officer for misfeasance or nonfeasance e. Invested by law with a portion of the sovereign power f. Authorized to exercise functions either of an executive, legislative or judicial character g. May be subordinate or inferior

2. Under the RPC – public officer – by election or appointment, takes part in the performance of public functions in the government or performs in the government public duties as an employee. Meaning of public official. 1. An officer of the government itself, as distinguished from the officers or employees of the government instrumentalities. 2. His duly authorized acts are acts of the government. 3. It is used synonymously with public officer. Classification of public offices or public officers. 1. As to nature of functions:

a. Civil – with executive, legislative or judicial functions b. Military – with military functions

2. As to creation a. Constitutional – by Constitution

b. Statutory – by Statute and under full control of Congress 3. As to the department of government to which it belongs

a. Legislative – enactment of laws b. Executive – execution or administration of laws c. Judicial – adjudication and interpretation of laws

4. As to branch of government served

a. National – national or central government b. Local – political subdivisions of the government

5. As to whether exercise of discretion is required

a. Quasi-judicial – require exercise of judgment b. Ministerial – duty to execute the mandates lawfully issued, of their superior

6. As to compensation

a. Lucrative office, office of profit or office coupled with an interest – salary, compensation or fees are attached and amount of which is supposed to be an adequate compensation b. Honorary office – no compensation is attached and is supposed to be accepted merely for public good

7. As to legality of title to the office

a. De jure b. De facto

8. Office of trust – if the duties and functions require the exercise of discretion, judgment, experience and skill


Chapter Two

ELIGIBILITY AND QUALIFICATIONS

A. In general Meaning of eligibility/eligible/ineligibility/ineligible. 1. Eligibility – state or quality of being legally fitted or qualified to be chosen. It is of a continuing nature and must exist both at the commencement and during occupancy of an office. 2. Eligible – legally fitted or qualified to hold an office. Under Admin Code – it used to be a person who obtains a passing grade in a civil service exam or is granted a civil service eligibility, and whose name is entered in the register of eligibles. 3. Ineligibility – lack of the qualifications prescribed by law for holding public office. 4. Ineligible

a. Legally or otherwise disqualified to hold an office b. Disqualified to be elected to an office c. Disqualified to hold an office, if elected or appointed d. A person disqualified to hold an office

Meaning of qualification. 1. Endowment or accomplishment that fits one for office 2. Act required by law to be done before entering upon the performance of duties. Nature of right to hold public office. 1. Not a natural right – it exists only because and by virtue of some law creating and conferring it. One must be eligible and possess the qualifications prescribed by law. Election or appointment of one who is ineligible or unqualified gives him no right to hold office. 2. Not a constitutional right – it is a political privilege which depends upon the favor of the people, coupled with reasonable conditions for the public good. He must comply with reasonable, lawful and non-discriminatory terms laid down by law. Power of Congress to prescribe qualifications. 1. In general General rule: Congress is empowered to prescribe the qualifications, which must always have a rational basis. Exception: If it exceeds its constitutional powers or conditions imposed by

constitutional provisions. 2. Where office created by Congress General Rule: Congress can set the qualifications and disqualifications. Exception: If it impinges upon any express provision of the constitution. 3. Where office created by the Constitution General rule: Where the Constitution establishes specific eligibility requirements, they are exclusive. Exception: If the constitution expressly or impliedly gives power to set qualifications. 4. Where qualifications prescribed by the Constitution – qualifications are not self-executing. They are mere announcements of general principles requiring legislation for their enforcement. Where the Constitution has prescribed certain qualifications, Congress may prescribe additional qualifications unless it is prohibited. Power of Congress to prescribe disqualifications. General rule: Congress has the same right to provide disqualifications when it has right to provide qualifications. Exception: Where the intention of the constitution is that the disqualifications shall embrace all that are to be permitted. Construction of restrictions on eligibility. 1. Presumption is in favor of the eligibility of one elected or appointed. 2. Basis of presumption – constitutional and statutory provisions which tend to limit the candidacy of any person for public office must be construed in favor of the right of the voters to exercise their choice, and construed strictly. 3. Rule of liberal construction – right to public office should be strictly construed against ineligibility. The right of a citizen to hold office is the general rule, ineligibility the exception. Time of possession of qualifications. 1. Where time specified by Constitution or law – necessary qualifications must be possessed at the time specified by law 2. Where Constitution or law is silent

a. Some courts – eligibility means capacity of holding office b. Other courts – conditions of eligibility must exist at the time of election or appointment c. Where provision refers to “holding office,” the qualifications are to be determined at the time of the commencement of the term


3. When qualifications must always exist – eligibility must be of a continuing nature, existing at the time of commencement of the term and during the occupancy of office. The will of the people as expressed through the ballot cannot cure the vice of ineligibility especially if mistakenly believed that the candidate is qualified Note: Local Government Code – “Qualifications of Elective Officials” (not of candidates) does not specify any time when the candidate must possess qualifications. Removal of disqualification during term. 1. Some courts – removal of disqualification validates the title of the incumbent 2. Other courts – removal of disqualification does not validate the title of the incumbent, depending on the nature of the disqualification, the mode of removing it, the time at which it is removed, etc.

B. Particular Qualifications and Disqualifications Qualifications usually required of public officers. Qualifications are continuing requirements and must be possessed at time of appointment, election or assumption of office and during the officer’s entire tenure. Once qualification is lost, title may be reasonably challenged Formal Qualifications: 1. Citizenship – aliens are not eligible to public office unless the privilege is extended to them by statute. Note: Teaching in a public school may be performed by citizens only. 2. Age – if a candidate lacks the age qualification on the day of election, he can be declared ineligible 3. Right to suffrage

a. Where the law is silent, it must be understood that only electors are eligible. b. Where the age qualification is below minimum voting age: all persons equally eligible to office and not excluded by some constitutional or legal disqualification may be appointed to office.

4. Residence – domicile and residence are synonymous. Requirements:

a. Intention to reside in a fixed place b. Personal presence in that place with conduct indicative of such intention

5. Education – prescribed when reasonably relates to the specialized demands of the office.

6. Ability to read and write – no constitutional prohibition against such imposition, especially where there is a reasonable relationship to the duties of the position 7. Political affiliation Note: Const., Art. 6, secs. 17 – 18 and Local Government Code: certain offices require nomination by membership in a political party or group 8. Civil service examination – to insure that appointments are made only according to merit and fitness. Religious qualifications prohibited. Const., Art. 3, sec. 5 – “no religious test shall be required for the exercise of civil or political right.” Religious test – one demanding avowal or repudiation of certain religious beliefs before the performance of any act. Note: SC ruled that a priest cannot be elected as municipal mayor. Power of Congress to impose property qualifications. 1. View that law is constitutional – unless prohibited by the Constitution, a legislature has the power to impose property qualifications. 2. View that law is unconstitutional – There is no rational between qualifications for administering public affairs and ownership of real property. Social justice presupposes equal opportunity for all. Qualifications prescribed by the Constitution for certain officers. 1. President and Vice-President

a. natural-born citizen b. registered voter c. able to read and write d. at least 40 years old on the day of the election e. resident of at least 10 years immediately preceding day of election

2. Senators

a. natural-born citizen b. at least 35 years old c. able to read and write d. registered voter e. resident for not less than 2 years

3. Members of the House of Representatives

a. natural-born citizen


b. at least 25 years old c. able to read and write d. except for party-list representatives, registered voter in the district in which he shall be elected e. resident thereof for not less than 1 year

4. Members of the SC and lower collegiate court

a. natural-born citizen b. for SC, at least 40 years old c. for SC, for 15 years or more:

i. a judge in the lower court, or ii. engaged in the practice of law in the Philippines

d. a person of proven competence, integrity, probity and independence 5. Chairman and commissioners of CSC For Chairman and 2 Commissioners:

a. natural-born citizen b. at least 35 years old c. has a proven capacity for public administration d. not have been a candidate for any elective position in the elections immediately preceding their appointment

6. Chairman and commissioners of Comelec For Chairman and 6 Commissioners:

a. natural-born citizen b. at least 35 years old c. with a college degree d. not have been a candidate e. for majority of which, including Chairman:

i. members of the Philippine bar, and ii. engaged for at least 10 years, in the practice of law

7. Chairman and commissioners of COA For Chairman and 2 Commissioners:

a. natural-born b. at least 35 years old c. At no time shall all members be of the same profession, but:

i. CPA with not less than 10 years of auditing experience ii. members of the Philippine bar and for at least 10 years, engaged in the practice of law

d. not have been a candidate

8. Chairman and members of CHR For Chairman and 4 Commissioners:

a. natural-born citizen b. at least 40 years old c. for majority of which are members of the bar

9. Ombudsman and his deputies

a. natural-born citizen b. at least 40 years old c. with proven probity and independence d. members of the Philippine bar e. not have been a candidate f. for Ombudsman, for 10 years and more:

i. judge, or ii. engaged in the practice of law

Qualifications prescribed by law for certain officers. 1. Department Secretaries

a. citizens of the Philippines b. not less than 25 years old

2. CA Justices – same qualifications for SC justices:

a. natural-born citizen b. for SC, at least 40 years old c. for SC, for 15 years or more:

i. a judge in the lower court, or ii. engaged in the practice of law

d. a person of proven competence, integrity, probity and independence 3. RTC judges

a. natural-born citizen b. at least 35 years old c. for at least 10 years,

i. engaged in the practice of law, or ii. has held public office requiring admission to practice of law

4. MTC, MeTC, MCTC judges

a. natural-born b. at least 30 years old c. for at least 5 years,

i. engaged in the practice of law, or ii. has held public office requiring admission to practice of law


5. Elective local officials a. citizen b. registered voter in the place c. resident for at least 1 year d. able to read and write Filipino or any local language or dialect e. for Governor, Vice, Sangguniang Panlalawigan, and highly urbanized cities

Mayor, Vice, Sangguniang Panlungsod, at least 23 years old f. for independent component cities, component cities, or municipalities Mayor,

Vice, Sanggunian Panlungsod, at least 21 years old g. for Punong Barangay, Sangguniang Panlungsod or Bayan, at least 18 years

old h. for Sangguniang Kabataan, from 15 to 21 years old only

6. Members of the Board of Election Inspectors For Chairman, member, or substitute member:

a. with good moral character and irreproachable reputation b. registered voter in the place c. without pending information for any election offense d. never convicted of:

i. any election offense, or ii. any other crime punishable by more than 6 months

e. able to speak and write English or local dialect Disqualifications to hold public office. Those who lack any of the qualifications are ineligible or disqualified from holding office. Appointment of ineligible or unqualified person is a nullity. 1. Mental or physical incapacity – idiot or non compos mentis is incapable of accepting or holding an office. A blind person is not disqualified from holding an office. 2. Misconduct or crime

a. persons convicted of crimes involving moral turpitude are usually disqualified. b. disqualification through mere commission or only after conviction depends to the wording of the applicable law c. a violation of municipal ordinance to qualify as a crime must involve at least a certain degree of evil doing, immoral conduct, corruption, malice, or want of principles reasonably related to the requirements of public office. Violation of municipal regulations does not constitute a crime.

3. Impeachment – judgment is limited to removal from office and disqualification to hold any office. If convicted, shall be liable and subject to prosecution, trial, and punishment according to law.

Applicable to: a. President b. VP c. Members of the SC d. Members of the ConComs e. Ombudsman.

Grounds:

a. culpable violation of the Constitution b. treason c. bribery d. graft and corruption e. other high crimes f. betrayal of public trust

4. Removal or suspension from office – bars the removed officer from an election or appointment to fill the vacancy for the unexpired term of the same position. Where there is no constitutional or statutory provision, a removed person may still be elected or appointed to a new term of the same office. 5. Previous tenure of office

a. President – no re-election b. Chairmen and commissioners of CSC, Comelec, COA – no reappointment c. Ombudsman and deputies – no reappointment and cannot run for office in the election immediately succeeding their cessation from office.

6. Consecutive terms

a. VP – not more than 2 b. Senator – not more than 2 c. Member of the house – not more than 3 d. Elective local officials, except barangay officials – not more than 3

7. Holding more than one office – no protected right to hold incompatible office. Where a person is prohibited from holding two offices at the same time or accepted a second incompatible office, he is deemed to vacate, or by implication, to resign from the first office. Limitations on the right to hold more than one office:

a. President, VP, Cabinet members and deputies – not to hold any other office or employment during tenure b. Congress – not to hold any other office in the government or in any of its subsidiaries c. SC and members of other courts – not to be designated to any agency performing quasi-judicial or administrative functions d. ConComs and Ombudsman – no other office or employment during tenure


e. Appointive official – no other office or employment in the government or in any of its subsidiaries f. Armed forces in active service – cannot be appointed or designated in civilian capacity in the government or in any of its subsidiaries

8. Relationship with appointing power – appointments should be based solely on merit and fitness uninfluenced by any personal or filial consideration. Nepotism is prohibited.

a. Prohibition on President from appointing spouse and relatives by consanguinity or affinity within the 4

th civil degree as members of the ConComs,

Office of the Ombudsman, as Secretaries, Undersecretaries, chairmen or heads of bureaus of offices, including government subsidiaries. b. All appointments of relatives within the third civil degree are prohibited, except when after an appointment to a position, the person contracts marriage with another in the same office. c. An appointment paper should be accompanied by a certification of the appointing authority that he is not related to the appointee within the third degree of consanguinity or affinity. d. Exempted from rule on nepotism:

i. Person employed in confidential nature ii. Teachers iii. Physicians iv. Armed forces members

9. Office newly created or the emoluments of which have been increased – no appointment of member of congress to an office which may have been created or the emoluments increased during term for which he was elected. Emoluments include fixed salary, fees and compensations the incumbent is entitled to receive. 10. Being an elective official – not eligible for appointment or designation to any public office during his tenure, to avoid “spoils system.” Appointment results to forfeiture of seat. 11. Having been a candidate and losing for any elective position – within one year after such election, cannot be appointed to government office and its subsidiaries to avoid “political lame-ducks.” Except: Losing candidates in barangay elections Note: Members of ConComs – must not have been candidates for any elective position in the elections immediately preceding their appointment. 12. Under the Local Government code – persons disqualified from running for any elective local position:

a. Within 2 years after serving sentence, with a final judgment for crimes

i. involving moral turpitude ii. punishable by 1 or more years of imprisonment

b. Removed from office as a result of an administrative case c. Convicted by final judgment for violating oath of allegiance to the Philippines d. With dual citizenship e. Fugitive from justice in criminal or non-political cases, here or abroad f. Permanent residents of foreign countries g. Insane or feeble-minded


Chapter Three

ACQUISITION OF RIGHT OR TITLE TO OFFICE

A. In General Modes of commencing official relations. A public office can be obtained only in the manner prescribed by the Constitution or by law; and not by a person’s own assumption or by employment of a person not authorized by law. Manner of selecting persons for public office: 1. By election 2. By appointment Meaning of appointment. Appointment is the act of designation by the executive officer, board, or body to whom that power has been delegated, of the individual who is to exercise the powers and functions of a given office. When appointing power resides. 1. Inherently belongs to the people – The selection of persons to perform the functions of government is primarily a prerogative of the people. The power of appointment to public offices belongs to where the people have chosen to place it by their Constitution or laws. 2. Entrusted to designated elected and appointed public officials – Appointment is generally looked upon as properly belonging to the executive department. It may also be made by Congress and the courts, but taken as an incident to the discharge of functions within their respective spheres. Appointing power generally regarded as an executive function. 1. Where power exercised by executive department – The power of appointment to public is generally regard as an executive function, whether exercised by the executive, legislative or judicial officers. The creation of a public office is a legislative function; the appointment of a particular person is an executive function. The legislative may confer the power of appointment on the President or on another public officer or board within the executive department. 2. Where power exercised by other departments – Appointments by the several departments of government are necessary to enable them to maintain their independent existence, and do not involve encroachment upon the function of any other branch.

The exclusive right to exercise the power of appointment is not included in the general grant of power to the executive. Power to appoint discretionary. 1. Power of courts to review appointment – Appointment involves the exercise of discretion, which, unless gravely abused, courts will not attempt to control. It cannot be the subject of mandamus.

a. The power to select an appointee is vested alone in the officers or bodies authorized to appoint, but it is limited to candidates having qualifications required by the civil service law and rules. The appointing authority is in the best position to determine who among the prospective appointees can effectively discharge the functions of the position. b. It is the prerogative of the appointive power that may be availed of without liability, provided that it is exercised in good faith and not in malicious or oppressive manner, or out of malice or spite. Unless any unfairness or arbitrariness can be shown, the choice of the appointing authority must be upheld. c. The choice of an appointee is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the service. In appointment or promotion, the appointing authority considers not only civil service eligibilities but also the performance, education, work experience, training and seminars attended, agency examinations, and seniority. d. Once the discretionary power of appointment is exercised and the appointee assumed the duties and functions of his position, the appointment cannot anymore be revoked by the appointing authority, except for cause.

2. Power of the Civil Service Commission revoke appointment – The CSC has no authority to revoke an appointment on the ground that another person is more qualified and to direct the appointment of a substitute.

a. An appointment is essentially within the discretionary power of to whom it is vested, subject only to the condition that the appointee should possess the qualifications required by the particular law. b. An appointment may be void from the beginning due to fraud on the part of the appointee or because it was issues in violation of law. Such appointment cannot give rise to security of tenure on the part of the holder of the appointment, and the Commission is empowered to take appropriate actions, such as recalling or revoking the appointment that has been in disregard of applicable provisions of law and regulations.


Power may be absolute or conditional. 1. Absolute – The choice of the appointing authority if it falls upon an eligible person, is conclusive. No further consent or approval is necessary. 2. Conditional – The assent or approval by some other officer is necessary to complete the appointment. Appointment may be complete only when such assent or confirmation is given. In either case, the appointment becomes complete when the last act required of the appointing power is performed. Until the process is completed, the appointee can claim no vested right in the office or invoke security of tenure. Tolerance, acquiescence or mistake of the proper officials resulting in non-observance of the requirements of law to complete the appointment does not render the requirements ineffective and unenforceable. Restrictions on the power to appoint. 1. Generally – Appointees should possess the prescribed qualifications and be selected solely with a view to the public welfare. The power of appointment must be exercised with disinterested skill and in a manner primarily for the benefit of the public 2. Under the Constitution – the appointments by the President are subject to the following:

a. The spouse and relatives within the 4th civil degree of consanguinity or affinity shall not, during the his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices. b. Two months immediately before the next presidential elections up to the end of his term, he shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service of endanger public safety. c. Congress may, by law, vest appointment of other officers lower in rank in the President alone, in the court, or in the heads of departments, agencies, commissions, or boards. d. The Supreme Court shall have the power to appoint all officials and employees of the judiciary in accordance with the Civil Service Law. e. The members of the SC and judges of lower court shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

f. The Constitutional Commissions shall appoint their officials and employees in accordance with law. g. The Members of the CSC, COMELEC, and COA shall be appointed without re-appointment. Appointment to any vacancy shall only for be for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. h. No candidate who has lost in any election shall within one year after such election, be appointed to any office in the Government or any government-owned or –controlled corporations or in any of their subsidiaries. i. No elective official shall be eligible for appointment or designation in any capacity to any any public office or position during his tenure. No appointive official shall hold any other office or employment in the Government or any other subdivision, agency or instrumentality thereof, unless otherwise allowed by law or by the primary functions of his position. j. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman according to the Civil Service Law. k. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation.

3. Under existing laws – Restrictions on the power to appoint are found primarily in provisions prescribing the qualifications and disqualifications for holding public office. No valid appointment when the office is not vacant. When appointment deemed complete. 1. Not subject to confirmation – Where the power of appointment is absolute, and the appointee has been determined, no further consent or approval is necessary and the formal evidence of appointment may issue at once. 2. Subject to confirmation – Where the assent or confirmation of some other officer is required, the commission can issue only when such assent or confirmation is obtained. 3. Approval by the CSC – Appointments to positions in the Civil Service must be submitted to the Commissioner of Civil Service for approval.

a. Where the appointee is a qualified service eligible, the Commissioner has no choice but to attest to the appointment. Attestation required is merely a check to assure compliance with the Civil Service Law, but the appointment is subject to the condition that if the Commissioner would later on reject the appointment by reason of lack of eligibility, appointment shall lapse despite attestation.


b. The acts of appointing power and approval of the CSC acting together though not concurrently, but consecutively, are necessary to make an appointment complete. In classified (now competitive) positions, appointment must be approved by the Commission to be entitled to the protection against unjust removal. Confirmation or attestation of the appointment by the CSC does not complete the appointment since it serves merely to assure the eligibility of the appointee.

4. Effects of completed appointment – Having once made the appointment, the appointing officer’s power over the office is terminated in all cases where by law the officer is not removable by him. No new or further appointment could be made to a position already filled by a previously completed appointment which had been accepted by the appointee through a valid qualification and assumption of its duties. Acceptance of appointment. Appointment to a public office necessarily precedes acceptance by the appointee. 1. Not necessary to completion or validity of appointment – Where there is no provision of the law to the contrary, the appointee’s acceptance of the office is not necessary to complete the appointment. When the person charged with the appointment do every act within their power to make such appointment, their functions with respect to the appointment are at an end, and the appointment is complete whether accepted or refused. 2. Necessary to possession of office – The individual chosen to an office cannot be deemed to be either fully possessed of its rights and privileges or subject to the performance to the performance of its duties and obligations until he has accepted it. An appointee cannot impose his own conditions for the acceptance of a public office. He may only either accept or decline it. Form of acceptance. 1. Express – When done verbally or in writing. The best evidence is taking the oath of office. 2. Implied – Without formal acceptance, the appointee enters upon the exercise of the duties and functions of an office. Obligation of elected or appointed individual to accept office. 1. Generally not subject to compulsion – The general rule is that a person may not be compelled to accept a public office. Except:

a. Constitution: The Government may call upon the people to and all citizens may be required to render personal military or civil service. b. RPC: Penalty and fine is imposed upon any person who, having been elected

by popular election to a public office, shall refuse without legal motive to be sworn in or discharge the duties of said office. c. Male inhabitants of a certain age may be required by the State in the exercise of its police power to assist in the protection of the peace and order of the community.

2. Obligation in the nature of a social duty – Every person who enters into civil society must owe to the public a social duty to bear his share of the public burdens by accepting and performing the duties of the public office to which he may be lawfully chosen. Necessity of written appointment. 1. View that appointment should be evidenced in writing – There should be some written memorial of the fact of appointment signed and executed by the appointing power, for an appointment affects the public and not merely private rights, and should be authenticated in a way that the public may know when and in what manner the duty has to be performed. 2. Contrary view – The right of the appointee to be inducted depends upon the fact of appointment and not upon his ability to establish that fact, where the law does not prescribe the manner in which the appointing power shall make the appointment, nor direct that any written evidence of the action be furnished to the appointee. Revocation of appointment. 1. Where appointment is final and complete – The general rule is that an appointment to an office, once made and complete, is not subject to reconsideration or revocation. Revocation, to be successful, must be made before the appointment is complete. The exception is where an officer is removable (removal vs. revocation) at will of the appointing power. 2. Where appointee has assumed position – Upon assumption into office, the appointee acquires a legal right, not merely equitable right, which is protected by statute and by the Constitution, and it cannot be taken away from him either by revocation or removal, except for cause and with notice and hearing. Unless the appointment is an absolute nullity, or in the absence of fraud on the part of the appointee, the irregularity must be deemed cured by the probational and absolute appointment of the appointee and should be considered conclusive. 3. Where protestant more qualified than appointee – The appointing power cannot effect the removal of the appointee by rescinding or revoking the appointment after it is complete on the ground merely that the protestant is more qualified than the first appointee, subject to the condition that the first appointee should possess the minimum qualifications required by law.


B. Appointments by the President Power of appointment of the President. The power of the President to appoint officers in the government is conferred upon him by the Constitution. There are 4 groups of officials whom the President is authorized to appoint: 1. Heads of executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in the Constitution (i.e. members of the Judicial and Bar Council, Chairman and Commissioners of the Civil Service Commission, Chairman and Commissioners of the Commission on Elections, Chairman and Commissioner of the Commission on Audit, and the Members of the regional consultative commission). 2. All other officers whose appointments are not otherwise provided by law and they refer to officers to be appointed to lower offices created by Congress where the latter omits to provide for appointment to said office. 3. Those whom the President may be authorized by law to appoint such as the heads of GOCCs, undersecretaries, heads of bureaus and offices, and other officials; and 4. Other officers lower in rank whose appointments the Congress by law vests in the President alone. Confirmation of appointments by Commission on Appointments. 1. Only those in (1) are appointed with the consent or confirmation of the Commission on Appointments. Congress cannot require confirmation of appointments of other officers. Heads of bureaus and certain offices under the different departments which are not called bureaus (e.g. SEC, Insurance Commission) no longer need the confirmation of the Commission on Appointments. 2. Under the Constitution, the President appoints members of the SC, judges of lower courts, including the Sandiganbayan, the Tanodbayan and his deputies, from a list prepared by the Judicial and Bar Council. Such appointments need no confirmation. 3. The Chairman and members of the CHR are to be appointed by the President without need of confirmation by the Commission on Appointments. Appointments by other officials. Congress may, by law, vest in courts, heads of departments, agencies, commissions, or boards the power to appoint officers lowers in rank in their respective offices. “Lower in rank” – officers subordinate to those enumerated in whom respectively the power of appointment may be vested.

Kinds of Presidential appointments. 1. Regular – Those made while Congress is in session; nominations subject to the confirmation of the Commission on Appointments; 2. Ad interim – Those made while Congress is not in session or during its recess; 3. Permanent – Those which last until they are lawfully terminated; 4. Temporary or acting – Those which last until a permanent appointment is issued. Appointments which are required ro be submitted to the Commission on Appointments are either regular or ad interim. Both are permanent in nature. Appointments that are for the President solely to make without the participation of the Commission on Appointments cannot be ad interim appointments. Ad interim appointments. 1. Under the Constitution, Commission on Appointments meets only while Congress is in session. Appointments made while Congress is not in session shall cease to be effective upon rejection by the Commission on Appointments, or if not acted upon, at the adjournment of the next session of Congress. 2. When making ad interim appointments, the President exercises a special prerogative and is bound to be prudent, to ensure approval of his selection, either by previous consultation with or thereafter explaining the reason for the selection to the Commission on Appointments. Temporary or acting appointments. 1. Generally, the power to appoint vested in the President includes the power to make temporary or acting appointments, unless he is otherwise specifically prohibited by the Constitution or law. 2. An acting appointment, being temporary or provisional in character, cannot be validly confirmed by the Commission on Appointments. 3. A temporary appointment is an acting appointment. The appointee has no fixed tenure and his employment can be terminated at the pleasure of the appointing power without hearing or cause. An ad interim appointment is permanent in nature, though it may be recalled or revoked by the President before confirmation. 4. An unqualified person cannot be appointed even in an acting capacity. Designations. Designations is the mere imposition of new or additional duties upon an officer to be performed by him in a special manner while he performs the function of his permanent office.


1. It is revocable and temporary for it does not confer upon the designee security of tenure in all the position which he occupies in an acting capacity only. 2. there being no appointment issued, designation does not entitle the designee to additional benefits or the right to claim the salary attached to the position. It cannot also be validly acted upon by the Commission on Appointments. Steps in the appointing process. 1. Nomination – It is the exclusive prerogative of the President which no limitation may be imposed by Congress, except those resulting from the need of the concurrence of the Commission on Appointments and from the exercise of legislative power to prescribe qualifications. 2. Confirmation – The power to confirm or reject certain appointments belongs to Congress, through the Commission on Appointments.

a. There is no appointment until it is confirmed. b. The President cannot confer power of participation in the Commission, nor the Commission can create power to confirm appointments, over appointments reserved solely to President by the Constitution. c. The act of confirming is not legislative in character, thus it need not be performed at a regular session of Congress. d. Confirmation cannot be reconsidered after the President has been notified of the confirmation and has completed the appointment by issuing a commission to the appointee, who thereupon assumes office.

3. Issuance of commission – The “commission” is the written authority from a competent source given to the officer as his warrant for the exercise of the powers and duties of the office to which he is commissioned. It is a written evidence of appointment.

a. There is no constitutional provision requiring the President to issue a commission, but it serves as evidence of the consummation of the exercise of the appointing power. b. Elective (as distinguished from appointed) officers’ right to office is established by the result of the election and not upon his getting a commission.

C. Appointments in the Civil Service

The Civil Service System. 1. Scope – It embraces all branches, subdivision, instrumentalities and agencies of the Government, including government-owned or controlled corporations with original charter.

2. Purpose – It is designed to eradicate the system of making appointments primarily from political considerations, to eliminate the element of partisanship and personal favoritism, to establish a merit system of fitness and efficiency, and to prevent discrimination based on consideration other than fitness to perform duties. It is to enable the national and local government and all its instrumentalities and agencies to render more efficient services to the public by enabling them to obtain efficient public servants. Classification of positions in the Civil Service. 1. Career service – characterized by: a) entrance based on merit and fitness determined by competitive exams or highly technical qualifications; b) security of tenure; c) opportunity for advancement to higher career positions. It includes:

a. Open career positions for appointments to which prior qualification in an appropriate exam is required; b. Closed career positions which are scientific or highly technical in nature; c. Positions in the Career Executive Service; d. Career officers other than those in Career Executive Service who are appointed by the President; e. Commissioned officers and enlisted men of the AFP which shall maintain a separate merit system; f. Personnel of GOCCs who do not fall under the non-career service; and g. Permanent laborers.

2. Non-career service – characterized by: a) entrance on bases other than usual test of merit and fitness; b) tenure which is limited to a period specified by law or which is co-terminous with that of the appointing power or subject to his pleasure, or limited to the duration of a particular project. It includes:

a. Elective officials and their personal or confidential staff; b. Department heads who hold positions at the pleasure of the President, including their staff; c. Chairmen and members of commissions and boards with fixed terms of office, including their staff; d. Contractual personnel; e. Emergency and seasonal personnel

3. Casual – Employment is not permanent but occasional, unpredictable, sporadic


and brief in nature. Classes of positions in the career service. 1. Three major levels, which requires examinations:

a. Clerical, trades, crafts, custodial service – involve non-professional or sub professional work in a non-supervisory or supervisory capacity requiring less than four years of college; b. Professional, technical and scientific positions – involve professional, technical or scientific work in a non-supervisory or supervisory capacity requiring at least 4 years of college; c. Career Executive Service

2. Requirement of competitive examinations – Entrance to levels (a) and (b) is through competitive examinations, which shall be open to those inside and outside the service who meet the minimum qualifications. Entrance to a higher level does not require previous qualifications. Entrance to (c) is prescribed by the Career Executive Service Board. For promotion within the same level, no civil service examination is required provided he has previously passed the same for the said level. Constitutional classification. 1. Competitive – Appointments are made according to merit and fitness to be determined by competitive examinations. 2. Non-competitive – Appointments do not have to take into account merit and fitness as determined by competitive examinations. They are described as policy-determining, primarily confidential, or highly technical in nature. Determination of merit and fitness by competitive examinations. As a general rule, the selection of any appointee to any government position shall be made only according to merit and fitness to be determined by competitive examination. 1. An examination, to be competitive, must be given under an objective standard of grading; must conform to measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary. 2. Examination must be competitive in substance, not merely in form. 3. An oral examination may be competitive where tests of manual or professional skill are necessary, provided the exam questions are such as to best determine the practical and technical qualifications of the applicants to perform the duties of the position to be filled.

Exemption from rule of non-competitive positions. Policy-determining, primarily confidential and highly technical positions are exempt from merit and fitness requirement, but they are still subject to the constitutional safeguard against removal or suspension except for cause. 1. Policy-determining – Occupant is vested with the power or formulating policies for the government or any of its agencies, subdivisions, or instrumentalities 2. Primarily confidential – Occupant enjoys more than the ordinary confidence in his aptitude of the appointing power but bears primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayal of personal trust on confidential matters of the State.

a. It can also be considered as such when the President, upon recommendation of the Civil Service Commissioner, has declared it to be, provided that the duties must have some relationship to the exemption and the classification must be reasonable. b. Such officials and employees continue only for so long as confidence in them endures. Termination justified on the ground of loss of confidence because their cessation from office involves no removal but merely the expiration of the term of office.

3. Highly technical – Occupant is required to possess skills or training in the supreme or superior degree. It is the nature of the functions of the position that determines whether it is policy-determining, primarily confidential or highly technical. Qualification standards in the Civil Service. A qualification standard expresses the minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness and other qualities required for successful performance. 1. Use of qualification standards – a) As basis for civil service exams for positions in the career service; b) as guides in the appointment and other personnel actions in the adjudication of protested appointments; c) in determining training needs; d) as aid in inspection and audit of the agencies’ personnel work programs. 2. Establishment, administration and maintenance of qualification standards – They are the responsibility of the department or agency, with the assistance and approval of the Civil Service Commission, in consultation with the Wage and Position Classification Office. Qualification standards shall be administered in such manner as to continually provide incentives to officers towards professional growth and foster the career system in the government service. 3. Approval of qualification standards – Approval of qualification standards by the commission is required since it is the central personnel agency of the government entrusted with the enforcement of laws relative to the selection, promotion, and


discipline of civil servants. 4. Offsetting of deficiencies – Even if the appointee possesses the required eligibility, there would be an abuse of discretion if the other qualifications are not satisfied. When necessary, education, experience or training may be used interchangeably to offset deficiencies except the required eligibility. The decision as to when the conditions give rise to necessity to interchange education with experience or training and vice versa rests upon the sound discretion of the appointing authority. Kinds of appointment in the career service. 1. Permanent – one issued to a person who meets all the requirements for the position to which he is appointed. It lasts until lawfully terminated. 2. Temporary or acting – one issued to a person who meets all the requirements of the position, except the appropriate civil service eligibility. It shall not exceed 12 months. The appointee may be replaced sooner if a qualified civil service eligible becomes available. What characterizes an appointment as permanent or temporary is not the nature of the position but the nature of the appointment extended. Instances of temporary appointment. 1. Where the appointee does not possess the required civil service eligibility, the appointment is temporary. Subsequent acquisition of the required eligibility will not make a temporary appointment regular or permanent. The temporary appointee can be replaced even by non-eligible whenever there is no civil service eligible actually available and ready to accept appointment. 2. A provisional (temporary) appointee is one with civil service eligibility but different from that which is appropriate to the position for which he was appointed. The law give him the privilege of occupying the position in the absence of an eligible and until the availability of an appropriate eligible is certified. 3. Appointment by the President of someone to fill an executive office during the absence or incapacity of the incumbent is temporary. 4. As long as the appointee has not passed any civil service examination in accordance with the rules and regulations of the Civil Service, the nature of the appointment is always temporary. 5. Where the appointment is subject to the consent and approval of the municipal council, there is no complete appointment to speak of; at most, pending compliance with the condition, the appointee is holding only a temporary and conditional appointment. An appointment issued and approved by the Commissioner of Civil Service “subject

to the availability of funds” is not a conditional appointment. 6. A regular government employee who has been illegally suspended or dismissed is entitled to be reinstated; there is no vacancy to which an incumbent can be permanently appointed, his appointment being considered temporary and has to give way to the employee whose right to office has been recognized. 7. One designated as officer in charge does not have any vested right over the position nor even tenure in office. 8. An appointment held at the pleasure of the appointing power is temporary in nature. Separation of temporary employees. An appointment which is temporary in nature can be terminated or withdrawn at the pleasure of the appointing power, without notice or hearing, and regardless of grounds or reasons. The fact that the appointment of an employee is classified as temporary does not grant a blanket authority to the appointing power to remove him at any time without cause where the appointment is for a definite period. Qualification in an appropriate examination. 1. Temporary appointment of non-eligibles in the absence of eligibles – When there is an eligible actually available for appointment, no person who not an eligible shall be appointed even in a temporary capacity to any vacant position, except when the immediate filling of the vacancy is urgently required in the public interest, in which case, temporary appointments of non-eligibles may be made in the absence of eligibles actually and immediately available. 2. Appointment to a position requiring lower eligibility – A person with an eligibility acquired by successfully passing an examination shall be qualified for a position requiring lower eligibility if he possesses the other requirements for appointment. 3. Issuance/revocation of certificate of eligibility – The Commissioner’s power to issue a certificate of eligibility carries with it the power to revoke a certificate for being null and void, and it may do so without notice and hearing to the examinee. Approval/recall of appointments by the Civil Service Commission. The Commission is the central personnel agency of the government charged with the duty of determining questions of qualifications of merit and fitness of one appointed to the Civil Service. 1. Appointments required to be approved – Among its powers and functions is to approve all appointments, whether original or promotional, to positions in the civil service (except presidential appointments, AFP, police forces, firemen and jail guards) and disapprove those where the appointees do not possess the appropriate eligibility or required qualifications


2. Right of appointee to a hearing in case of disapproval – When the disapproval is based on non-conformity to applicable provisions of law on the qualifications of the appointee, there is no need for a hearing. The appointee is given the opportunity to be heard by filing a motion for reconsideration. 3. Effectivity of appointment until disapproval – An appointment shall take effect immediately upon issue by the appointing authority if the appointee has assumed his duties, he shall be entitled to receive his salary without awaiting the Commission’s approval. The appointment shall remain effective until it is disapproved by the Commission, without prejudice to liability of the appointing authority for appointments issued in violation of law or rules. Where favorable approval or certification is required and the same is not given, no title to the office can yet be deemed to be permanently vested in favor of the appointee, and the appointment can be recalled or withdrawn by the appointing authority. Until an appointment is completed, one cannot invoke security of tenure. 4. Criterion to be employed – The Commission has authority to check whether or not the appointee possesses the appropriate civil service eligibility or the required approved qualifications. If he does, his appointment must be approved; if not, it should be disapproved. No other criterion may be employed by it when it acts on appointments. It is not authorized to curtail the discretion of the appointing official on the nature or kind of appointments to be extended. 5. Extent of Commission’s authority – The authority of the Commission is limited to reviewing appointments, approving or disapproving them in the light of the requirements of the law. It does not have the power to make the appointment itself or to direct the appointing power to change the employment status. While the Commission has no authority to revoke an appointment on the ground that another is more qualified, it may order the reinstatement of an illegally demoted or dismissed employee. 6. Attestation of appointment – The Commission can only inquire into the eligibility of the person chosen to fill the position. If it finds the person not qualified, the appointment must be disapproved. When the appointee is qualified, and all other requirements have been satisfied, the Commission has no choice but to attest to the appointment. Once the function is discharged, its participation in the appointment process ceases. The only purpose of attestation is to determine whether the appointee possesses the required eligibility; no more than that is left to the commission. 7. Keeping of records of all appointments – The Commission is required to keep a record of all appointments of all officers and employees in the civil service. They must be submitted by the appointing within 30 days of issuance, otherwise, the appointment becomes ineffective 30 days thereafter. 8. Recall of appointment – Recall of an appointment initially approved may be done

only when the appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations. 9. Grounds for recall:

a. Non-compliance with the procedures/criteria provided in the agency’s Merit Promotion Plan; b. Failure to pass the agency’s Selection/Promotion Board; c. Violation of existing collective agreements between management and employees relative to promotion; d. Violation of other existing civil service law, rules and regulations.

An appointment may only be recalled on the above-cited grounds. Appointment through certification. An appointment through the certification to a position shall be issued to a person who has been selected from a list of qualified persons certified by the Commission from an appropriate register of eligibles, and who meets all the other requirements of the position. All such persons must serve a 6-month probationary period following their original appointment and shall undergo a thorough character investigation in order to acquire permanent civil service status. He may be dropped from the service for unsatisfactory conduct or want of capacity any time before the expiration of the probationary period, and such action is appealable to the Commission.

D. Vacancy Meaning of vacancy. When an office is empty and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise powers and perform his duties. Existence of physical vacancy not essential. An office may be vacant when it is occupied by one who is not a de jure officer, a usurper, or by one who is holding over. Although there is no physical vacancy in the office exists, there is still a vacancy in the sense that the appointing power may proceed to fill the office by choosing a successor. Appointment to a non-vacant position. No person, no matter how qualified and eligible for a certain position, may be appointed to an office which is not vacant There can be no appointment to a non-vacant position. The incumbent must have


been lawfully removed or his appointment validly terminated before one could validly install a successor. Where a regular employee is illegally dismissed, transferred , or demoted, his position does not become vacant. Classification of vacancy. 1. Ordinary – office is created and no one has been appointed to fill it 2. Constructive – when incumbent has no legal right or claim to continue in office and can be legally replaced by another functionary 3. Accidental – when the incumbent, having died, resigned or been removed, there is no one in esse discharging the duties of the office 4. Absolute – term of an incumbent having expired and the latter not having held over, no successor is in being who is legally qualified to assume the office. Causes of vacancy Circumstances or events that bring about vacancy in office are set forth in the constitution and the laws. 1. Death, permanent disability, removal from office or resignation of the incumbent.

a. If acceptance of resignation is necessary, there is no vacancy until accepted. b. When illegally suspended or dismissed, office never becomes vacant. Resignation or removal must be valid to create a vacancy

2. Abandonment, expiration of term, conviction of a crime, impeachment conviction, acceptance of incompatible office, creation of a new office, reaching age limit, and recall. Also, failure by chosen person to accept or qualify for office Filling of anticipated vacancies. 1. Generally appointment legal – a prospective appointment to fill an anticipated vacancy is legal in the absence of express law forbidding it. It vests title to the office in the appointee. Example: When an officer resigns to take effect on a future date and when accepted, the appointing officer may appoint successor which will take effect when the resignation becomes operative. 2. Where appointment to take effect after expiration of appointing power – appointing power cannot forestall the rights and prerogatives of their successors by appointing successors to offices after its power to appoint has itself expired. Example; An outgoing president nominated officials to be appointed which was submitted to the Comm. On Appointments before it began its session. The New President can recall those nominees, otherwise the outgoing president would be making an appointment to take effect after he has ceased to be president.

E. Qualifying to Office Qualification (as an act) to an office. Officers, whether elected or appointed are usually required by law to do some act – termed qualification – by which he shall signify his acceptance of the office and his undertaking to execute the trust confided in him. It is presumed that all conditions necessary to qualifying for a public position have been fulfilled before the appointee takes office. It generally consist of the taking, and often subscribing and filing of an official oath, and in some cases, of giving official bond, if any, required by law. Effect of failure to qualify. Deemed evidence of a refusal of office. However, a failure or neglect to qualify within a particular time prescribed, if afterwards supplied, would not ordinarily be deemed ipso facto a rejection of the office. Sickness, accidents and other fortuitous events which excuses delay will justify the delay in qualifying. A person appointed to an office who fails to qualify is regarded as a de facto officer. Oath of office for public officers. Oath – outward pledge where one formally calls upon God to witness to the truth of what he says or to the fact that he sincerely intends to do what he says. 1. Under the constitution – president, VP, acting president – before entering their offices. Same requirement for other public officers 2. Under the administrative code of 1987 – all public officers and employees including every member of the armed forces - before entering upon the discharge of his duties, take an oath or affirmation 3. Under the local government code – all elective and appointive local officials and employee - upon assumption to office, subscribe an oath or affirmation of office in prescribed form, filed with the local chief executive. Copy of such preserved in the individual personnel records file Necessity of oath of office. It is mere incident to the office. Must be done within a specified time. It is generally construed to be merely directory and mere delay in taking the oath, if it be afterwards taken with approval of the public authorities, while it may be a ground for forfeiture while delay continues, when the oath is taken, the delay is deemed valid. The President, VP and acting president cannot enter on the execution of his/her office without taking prescribe oath and affirmation. Oath taking is mandatory, It marks the formal induction of the official in office. Unless the law requires more, it is sufficient that oath be taken. It need not be in writing or be subscribed by the affiant.


Officers authorized to administer oaths. 1. Notaries, members of the judiciary, secretaries of congress, secretaries of departments, bureau directors, registrar of deeds, provincial governors and lieutenant governors, city mayors, and any other officer in the service of the government of the Philippines whose appointment is vested in the President. 2. May be administered by another officer whose duties require presentation to him of any statement under oath. Except notaries, officers shall charge no fee, and Officers, except notary publics, municipal judges and clerk of courts, are not obliged to administer oaths or execute certificates save in matter of official business. Public officers and employees required to give bonds. Accountable public officials or those to whom are entrusted the collection and custody of public money, and public ministerial offices whose actions may affect the rights and interests of individuals are usually required to give bonds. Nature of official bonds. 1. In the nature of indemnity bond and in effect, a contract between the officer and the government, binding the officer to discharge the duties of his office. 2. An obligation binding sureties to make good the officer’s default. It is for the benefit of the public interest. 3. Creates a primary contractual obligation between the injured party and the officer and the surety. 4. Merely collateral security for the performance of the officer’s duty. Necessity of giving official bonds. 1. Requirement, a mere incident of office – it can be one of the consideration to determine the character of the position, like an oath 2. Where time prescribed within which to give bond – if the statute requires bond, it must be given within the fixed time after the officer’s election or appointment.

a. When time couched in explicit language that it is merely directory and not mandatory – failure to give bond does not ipso facto work a forfeiture of office especially when not due to his fault, but it is a ground for forfeiture. b. Time is expressly made a condition – office deemed vacated when the required bond is not given within the time fixed by law.

F. De Facto Officers The de facto doctrine. A person who, by the proper authority, is admitted and sworn into office is deemed to be rightfully in such office until, by judicial declaration, he is ousted therefrom, or his admission thereto is declared void. Basis and reason for the doctrine. It springs from the fear of the chaos if multiple and repetitious suits are filed challenging every action taken by every official whose claim to the office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in his title to the office. De facto officer defined. One who is reputed to be the officer he assumed to be and yet is not a good officer in the law’s point. He is one where the duties of the office are exercised: 1. without a known appointment or election but under circumstances of reputation or acquiescence as to induce people, without inquiry, to submit or to invoke his action, supposing him to be the officer 2. under color of a known and valid appointment or election but has failed to conform to some precedent requirement or condition such as to take an oath or give a bond 3. under color of a known election or appointment, but was not eligible or want of power in the appointing body or defect or irregularity in the exercise, and such facts are unknown to the public 4. under color of an election or appointment by or pursuant to a law that is later declared unconstitutional A de facto officer is one in possession of an office in the open exercise of its functions under color of an election or appointment even though the election or appointment may be irregular or informal. De jure officer defined. One who has a lawful right to the office but who has either been ousted from it or who has never actually taken possession of it. Three Requirements to become de jure officer. 1. must possess the legal qualification for the office in question 2. must be lawfully chosen to such office


3. must have qualified himself to perform the duties of the office according to the mode prescribed by law. Officer de jure and officer de facto distinguished.

De Jure Officer De Facto Officer

Rests on a right Rests on reputation

Lawful title or right to the office Has possession and performs duties under color of right without being technically qualified

Cannot be removed in a direct proceeding

Can be ousted in a direct proceeding against him

Note:

There can be no officer either de jure or de facto where there is no office to fill.

There can be no de facto officer where there is no de jure office.

There may be a de facto officer in a de jure office. Usurper or intruder defined. He is one who takes possession of the office and undertakes to act officially without any color of right or authority, either actual or apparent. Officer de facto and usurper distinguished.

De Facto Officer Usurper

Color of right or title to the office Neither lawful title nor color of right to the title

Assumes to exercise functions where public does not know his lack of title or authority

Assumes to act as an officer where public knows or ought to know that he is a usurper

Removed only in a direct proceeding against him

May be ousted at any time in any proceeding

All acts otherwise legitimate are valid in so far as the public or third persons are concerned

Acts absolutely null and void

Note:

It is the color of authority that distinguishes a de facto officer from a usurper.

A usurper may grow into an officer de facto if his assumption of office is acquiesced as when he continues to act for so long a time to afford a strong presumption that he has been duly appointed or elected and therefore has the right to act.

Double occupancy of a single office. 1. Two different persons cannot occupy and exercise the same office at the same time. There can be no de jure officer and de facto officer in possession of the same office at the same time.

2. When the de jure officer is also the de facto officer, lawful title and possession are united and no other person can be an officer de facto to that office. Hence, there cannot be two de facto incumbents of one office at the same time, and where two are acting simultaneously, each under claim of right, the owner who appears to have the better title will be recognized. Elements of de facto officership. All must be present: 1. there must be a de jure office 2. there must be a color of right or general acquiescence by the public

Color of right may be by election, appointment, holding over after the expiration of one’s term or acquiescence by the public

The de facto office must have some appearance of a right to the office. The nonexistence of any general reputation or recognition as a public officer may be enough to prevent the courts from giving such status to one who claims to hold the office.

3. there must be actual physical possession of the office in good faith

The possession must be in good faith, under color of right or title, and with faithful exercise of the functions of the office.

Possession alone makes him a mere intruder or usurper. Instances of de facto officers. 1. A Lawyer designated to be the Assistant Fiscal by the an Acting Provincial Governor without authority to designate him as such or to order him to file an information 2. A person proclaimed elected to public office but later ousted due to an election contest 3. A person’s appointment to a competitive position not approved by the CSC 4. A public official or employee who assumed office under an incomplete appointment 5. Designation as acting mayor not made in accordance with the law (not made by the Governor) 6. A judge in good faith who continues to act as such after the abolition of his court 7. A judge who continues to exercise his duties after the CSC disapproves his appointment but before receiving notice of said disapproval 8. A judge who in good faith continues to discharge duties after reaching the retirement age


9. An incumbent elective official appointed or designated to a government position pursuant to a legislative act contravening the constitutional prohibition 10. A person appointed to an office subsequently declared ineligible Office created under an unconstitutional statute. 1. View that occupant not even officer de facto General Rule: An officer created by an unconstitutional statute is not even an officer de facto nor is he an officer. An unconstitutional law is not law and it confers no rights, it imposes no duties, it affords no protection, and it creates no office. 2. Contrary view Exception: Where strict adherence would lead to uncertainty, chaos, and confusion, great public inconvenience, or great hardship to litigants. Hence, the incumbent, for the sake of the public policy and the protection of private rights, will be recognized as an officer de facto until the unconstitutionality of the act has been judicially determined. Legal effects of acts of de facto officers. Validity of the acts of de facto officers depends on whether such officers are attempting to justify themselves, or whether the rights of third persons and the public are involved. 1. as regards the officers themselves General Rule: A party suing or defending in his own right must show that he is an officer de jure because the acts of the de facto as far as himself is concerned are void. Hence, he cannot justify his acts as binding or valid in any suit to which he is a party. Purpose: To discourage the seizure of public offices. Moreover, he is bound to know whether he is a legal officer and if he attempts to exercise the duties of an officer without authority he acts at his own peril. 2. as regards the public and third persons General Rule: The acts of a de facto officer are valid as to third persons and the public until his title is adjudged to be insufficient. The said authority may not be collaterally attack or inquired into by third persons affected. Note:

Third persons cannot always investigate the right of one assuming to hold an office.

They also have a right to assume that officials are apparently qualified.

The de facto officer is estopped from taking advantage of his own want of title.

Proceedings to try right or title of a de factor officer.

Title of an officer de facto, and the validity of his acts, must be directly questioned and cannot be collaterally questioned in proceedings to which he is not a party.

1. A quo warranto proceedings may be instituted only by the person who claims to be entitled to the office, or by the State through the Solicitor General or a public prosecutor.

2. He must set forth the name of the person entitled to the office, and that of the defendant (de facto or usurper) and all other persons who claim a right to the office. He cannot oust two or more persons illegally holding the offices unless he is entitled to both.

3. A public officer or employee is entitled to due process and security of tenure. The law then presumes that a person acting in a public office was regularly performed and that the official duty has been regularly performed.

Right to compensation of a de facto officer.

1. General rule– A de facto officer cannot maintain an action to recover compensation attached to the office even though he has performed the duties thereof on the theory that the acts of a de facto as far as himself is concerned are void. Only an officer de jure can maintain an action for compensation.

2. Exception– A de facto officer in good faith who renders the required service may recover compensation for the time he rendered service or retain the emoluments received during that time

If lawfully paid to the de facto officer, the de jure officer who recovered the office cannot compel the government to pay compensation again for a second time.

Disbursing officers have a right to rely upon the apparent title of the officer without inquiring whether another one has the better right.

3. Exception to the Exception: De factor officers who are merely designated are not entitled to compensation or additional benefits.

Liabilities of a de facto officer. 1. He has the same degree of accountability for official acts as a de jure and cannot escape liability because he was not qualified or he failed to give a bond.

2. Even though his acts are valid and binding as to third persons and the public, he may be liable for all penalties imposed by law for usurping or unlawfully holding office.

3. He cannot excuse responsibility for crimes committed in his official capacity by asserting that he is a de facto officer.

4. A rightful incumbent may recover from de facto officer the salary received even though he occupied the office in good faith and under color of title. The rule is where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith.


Chapter Four POWERS, DUTIES, AND NORMS OF CONDUCT OF PUBLIC OFFICERS

Source of powers and authority of public office. The people, directly or through representatives, create offices and agencies as they deem desirable for the administration of the public function. They declare in what manner and by what persons they shall be exercised. They prescribe the quantum of power attached to the office and the conditions. Authority of public officer not presumed. Officers are agents entrusted with responsibility of discharging its functions. There is no presumption of authority. In the absence of a valid grant, they are devoid of power. Authority of public officer and private agents distinguished. Private agents – authority classified according to nature, effect, universal or special. The same does not apply to public officers. Universal authority of a public officer cannot exist. Some authorities are general in nature, some are limited and special. Ascertainment of authority of public officer. It is presumed that all persons having occasion to deal with public officers have knowledge of his authority. They must see to it that the authority is sufficient for the assumed purposes. There is no apparent authority in a public officer. The public must ascertain the scope of authority, and are chargeable with notice of the contents of the law conferring that authority. But every citizen has the right to assume that a public officer charged by law with certain duties knows his duties and performs the same in accordance with the law. Scope of power of a public officer. 1. Expressly conferred by law under which he has been appointed or elected 2. Expressly annexed to the office by law which created it or some other law referring to it 3. Attached to the office as incidents to it Generally, the powers are prescribed by the Constitution or statutes. They only have those powers expressly granted to them. If broader powers are desirable, must be conferred by the proper authority; cannot be merely assumed nor created by the courts. Territorial limitation of authority of public officers. 1. Limited to territory where law has effect – authority cannot exist in places where the

law has no effect 2. Action at a place not authorized by law ordinarily invalid – where public officer authorized by law to perform his office at a particular place, action at a place not authorized by law is invalid. Example; judge levying and selling property outside its jurisdiction is invalid. Duration of authority. 1. Duration of term – can exercise no authority before his term begins or after it has terminated 2. Where officer chosen to act in reference to a particular subject – his powers exhaust themselves in the acting, and having once acted, he is henceforth functus officio and can neither act again in reference to the same subject matter nor undo what he has done. Construction of grant of powers. Express grants of power are subject to a strict interpretation and will be construed as conferring those powers only which are expressly imposed or necessarily implied. Classification of powers and duties. 1. From their nature:

a. Ministerial – absolute, certain, and imperative involving merely execution of a specific duty arising from fixed and designated facts. No judicial power or discretion as to the interpretation of the law, and the course to be pursued is fixed by law Ministerial act – one which a person performs on a given statement of facts, and in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety or impropriety of the act done His only duty is obedience and he cannot excuse himself by undertaking to show the unconstitutionality or irregularity of the proceeding. b. Discretionary – those that necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion arises when the act may be performed in one of two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it will be performed.

2. From the standpoint of the obligation of the officer to perform his powers and duties

a. Mandatory – powers are construed to be mandatory although the language may be permissive, where they are for the benefit of the public


b. Permissive – statutory provisions define the time and mode in which public officers will discharge their duties which are designed to secure order, uniformity, system, and dispatch of public business. Mere authorization to perform an act does not impose a mandatory duty upon a public official. If the act does not affect third persons and is clearly beneficial to the public, permissive words will not be construed as mandatory.

3. From the standpoint of the relationship of the officer to his subordinates

a. Power of control – power of an officer to manage, direct or govern what a subordinate had done in the performance of duties and to substitute his judgment for that of the latter. He lays down the rules in the doing of an act and if he is not followed, it is discretionary on his part to order the act undone or re-done by his subordinate or do the act himself. Example; power of control of president over the Cabinet members. b. Power of supervision – power of mere oversight over an inferior body. He sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. He may order the work undone or re-done but he cannot prescribe his own manner for doing the act. Example; Power of the president over the local Government.

Ministerial and discretionary powers distinguished. 1. Nature of the act – character of duty determined by the nature of the act to be performed and not by the office of the performer. Nature is determined by the facts of the particular case. 2. Exercise of discretion – key distinction is whether the duty is mandatory or whether the act complained of involves policy making or judgment

a. Not discretionary – involves enforcement or administration of a mandatory duty at the operational level, even if professional expert evaluation is required b. Ministerial act – nothing is left to the discretion of the person who must perform. It is a simple, definite duty arising under conditions admitted or proved to exist and imposed by law

3. Illustrations:

a. Register of Deeds

i. When registering under Mortgage Law – judicial, meaning discretionary ii. When registering under Chattel Mortgage Law – purely ministerial

b. Payment of Salary - Ministerial c. Issuance of Cockpit License under municipal ordinance by Mayor – Both ministerial and discretionary. Mandamus will not lie

d. Sheriff executing writ of execution – Ministerial e. Local city treasurer in accepting tax which is not correct – Discretionary. Hence he/she is not obliged to accept deficient taxes

Meaning of discretion. Act or liberty to decide according to the principles of justice and one’s ideas of what is right and proper under the circumstances, without willfulness or favor. According to the dictates of their own judgment and conscience, uncontrolled by the judgment and conscience of others. Exercise of discretion limited. It is limited by the legal construction, to the evident purpose of the act, and to what is known as sound and legal discretion, excluding all arbitrary, capricious, inquisitorial and oppressive proceedings. By such exercise of discretion, an officer may decide either way, and though mistaken, still be right in the sense of being exempt from liability. Remedy to compel exercise of duty. Where there is a clear duty imposed and an unnecessary and unreasonable delay occurs, courts will intervene by mandamus. If the duty is purely ministerial, courts will require specific action; if purely discretionary, mandamus will require action only. For example, a tribunal was vested to decide a particular action, however, after an unreasonable amount of time, the tribunal didn’t took cognizance of the case, Mandamus will lie only up to try the case but not to supplant the decision of the tribunal. Delegation of discretionary powers. Proper execution of the office requires the exercise of judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and discretion. Unless authorized, he has no power to delegate his duties to another. Delegation of ministerial powers. Where the act is purely of a mechanical executive or ministerial in nature, the performance of duties of this nature may, unless expressly prohibited, be properly delegated to another. But where the law expressly requires the act to be performed by the officer in person, it cannot, though ministerial, be delegated to another. Time to perform official acts. 1. Where no time stated in the statute – performed within a reasonable time.


2. Where time stated in the statute – in the absence of a language prohibiting the performance of an act at other than the time stated, such is merely directory and not mandatory, unless the nature of the act or the language of the law clearly intends to limit the power of the officer like accompanying it with negative words importing that the acts shall not be done in any other manner or time that that designated and when disregarded, it would injuriously affect public interest or public right. Ratification of unauthorized acts. 1. Act of a public officer may not be binding if exercised defectively but his acts may be ratified

a. Ratification does not apply where there is want of power to perform the original act. (When the principal could not lawfully have done the act. b. If merely voidable, the act can be rendered valid

2. In the absence of ratification, state is not estopped by the unauthorized or illegal acts of its agents 3. Superior officers have the authority to ratify but they are restricted to the ratification of acts and contracts which they themselves were empowered to make Judicial review of official acts. 1. Where the act involves exercise of discretionary power – officer is sole and exclusive judge of the existence of those facts. Judiciary will not interfere in the absence of abuse in discretion, or fraud or corruption that vitiates consent. 2. Where act involves performance of purely ministerial duty – when performance is refused, he could be compelled by mandamus for its performance. When such duty is threatened to be violated by some positive official act, an injunction may be had to prevent it 3. Where act reviewed done without jurisdiction – it is for the courts to finally determine whether a public officer acted within the scope of his authority Norms of conduct of public officials and employees. 1. Public office is a public trust – must at all time be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives 2. Standards of personal conduct

a. Commitment to public interest – public interest over personal interest. Al government sources must be employed and used effectively, efficiently, honestly and economically b. Professionalism – highest degree of excellence, professionalism, intelligence and skill. There must be utmost devotion and dedication to duty.

They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage c. Justness and sincerity – remain true to the people at all times. Must act with justness and sincerity and not discriminate against anyone. Must respect the rights of others and shall refrain from doing acts contrary to law, good morals, good customs, public policy, etc. They shall not extend or dispense undue favors except with respect to appointments of relatives in confidential positions d. Political neutrality – provide service to everyone without unfair discrimination and regardless of party affiliation or preference e. Responsiveness to the public – extend prompt, courteous, and adequate service. Provide information on their policies and procedures in a clear and understandable language, openness of information, conduct public consultation and hearing, encourage suggestions, simplify and systemize policy, rules, procedures, avoid red tape, etc f. Nationalism and patriotism – to be loyal to the Republic and the Filipino people at all times, promote the use of locally-produced goods, encourage appreciation and pride of country and people. Must maintain and defend the country’s sovereignty against foreign intrusion g. Commitment to democracy – maintain public accountability, manifest by the deeds the supremacy of the civilian over the military. Must uphold the constitution and put loyalty to country above loyalty to person or party h. Simple living – modest lives. Must not indulge in extravagant or ostentatious display of wealth. Must live within the official’s visible means of income as correctly disclosed

3. Duties of the CSC – adopt positive measures to promote:

a. Observance of these standards including information dissemination of programs and workshops b. Continuing research on measures which provide positive motivation to public officials

System of incentives and rewards. This system is established to motivate and inspire public servants to uphold the highest standards of ethics. 1. Criteria – employees who have demonstrated exemplary service and conduct on the basis of their observance of norms of personal conduct. The following criteria shall be considered:

a. years of service b. quality and consistency of performance


c. obscurity of the position d. level of salary e. unique and exemplary quality of achievement f. risk or temptation inherent in the work g. any similar circumstances or consideration

2. Form of incentives and rewards

a. bonus b. citation c. directorship in GOCCs d. local and foreign scholarship grants e. paid vacations e. automatic promotion to next higher position, provided, if there is no next higher position or it is not vacant, position be included in the next budget except when creation will cause organizational distortion. Where no next higher position immediately available, salary increase equivalent to next higher position. When a new position is created, that which is vacated is deemed abolished.

The grant of awards shall be governed by the merit and fitness principle. 3. Committee on awards – It is composed of the Ombudsman, the chairman of the CSC, Comm. on Audit and 2 government employees appointed by the President as members. Their responsibilities are:

a. Periodic, continuing review of performance of officials b. Establish system of annual incentives and rewards c. Determine the form of rewards to be granted d. Formulate and adopt rules to govern the conduct of activism, including guideline for evaluating nominees, and mechanism for recognizing the awardees in public ceremonies, and the creation of sub-committees.

Evaluation of nominees may be assisted by technical experts. 4. Secretariat – The CSC shall provide secretariat services to the Committee Any department may institute its own rewards program in addition to the ones provided. Duties of public officers as trustees for the public. 1. In general –sacrifice necessary for the safety and happiness of human society, and the need of his sacrifice is increased in the case of officers appointed to preserve peace and enforce laws.

a. Duty to obey the law b. Duty to accept and continue in office. An attempt to resign from an office does not relieve an officer from the obligation of performing his duties, at least until a successor is appointed. c. Duty to accept burden of office

d. Duty as to diligence and care - Public finds and property for official use and purpose shall be utilized with the diligence of a good father of a family. e. Duty in choice and supervision of subordinates – The degree of care required in selecting subordinates must depend upon the nature of the work to be performed and the circumstances of each case.

2. Ethical duties – bound to perform honestly, faithfully, and to the best of his ability, and to act primarily for the benefit of the people. An attempt to exercise those powers corruptly for some improper purpose is null and void.

a. Duty as to outside activities – refrain from outside activities that interfere with the proper discharge of their duties. Congress has the power to ascertain and declare what activities are inconsistent with the proper performance of public duties. b. Duty where personal interest is involved – not permitted to place himself in a position which will subject him to conflicting duties or expose him to the temptation of acting in any manner other than in the best interests of the public. A public official may not use his official power to further his own interest. c. Duty to act with civility – Government service is people oriented. Belligerent behavior has no place in government service. Public officers and employees should be living examples of uprightness not only in performance of their official duties, but also in their personal and private dealings with other people.

Duty to make financial disclosure. To maintain public confidence, to avoid conflicts of interest, and to provide the citizens with information concerning a public officer’s financial affairs, and thus enable to public to better judge his integrity and fitness for office, the Constitution requires financial disclosures on the part of all government personnel. Specific duties of public officials and employees. In the performance of their duties, all public officials and employees are under obligation under the Code of Conduct and Ethical Standards for Public Officials and Employees to: 1. Act promptly on letters and requests – respond within 15 working days upon receipt, contain the action taken on the request. The Reply must contain the action taken on the request. 2. Submit annual performance reports – within 45 working days from end of the year, render a full and complete report of performance and accomplishments. Report shall be available to the public. Report of compliance will be submitted to the CSC. 3. Process documents and papers expeditiously – must be processed and completed within a reasonable time from preparation, must contain not more than3 signatories. In absence of authorized signatures, the official nest in rank or officer in charge shall


sign for and in their behalf. 4. Act immediately on the public’s personal transactions – must attend to anyone who wants to avail himself of the services of their offices, act promptly and expeditiously. Example of this is giving of tickets which contains time and date wherein service will be done without delay. 5. Make documents accessible to the public – Documents shall be open and accessible to public within reasonable hours Actions on requests and petitions. 1. General Rule: when a request or petition can be disposed of promptly and expeditiously, must do so immediately. In no case shall it be beyond 15 working days from receipt. 2. Written requests – within 15 working days upon receipt, provided that:

a. communication is within jurisdiction of the agency, officer must:

i. write acknowledgement if matter merely routinary ii. matter non-routinary – write acknowledgment, action to be taken and other additional requirements when all have been submitted back to him, inform the party of the action to be taken and when such action can be expected.

b. communication outside the jurisdiction:

i. refer letter to proper office, telegram or verbal ii. acknowledge the communication, inform party of referral to proper department proper office must act on the communication within 15 working days.

3. The department, agency or office to which the letter was referred must take action in accordance with the letter. 15 days shall be counted from the receipt of the written or verbal communication of the dept, office or agency concerned. Processing of papers and documents. All official papers and documents must be processed and completed within a reasonable time from the preparation thereof. 1. When law prescribes a period, the same shall be followed 2. When no period prescribed in the law – issue action within a reasonable time, considering the following factors:

a. nature, simplicity or complexity of the subject matter b. completeness or inadequacy of requirements or of data and information necessary for the decision

c. lack of resources caused by circumstances beyond the control of the department d. legal constraints e. fault, failure or negligence of the party concerned which renders decision or action not possible or premature f. fortuitous event or force majeure

Signing of any written action or decision. Except otherwise provided by law, action or decision must contain not more than 3 initials or signatures. The head of department shall prescribe rules on the proper authority to sign in the absence of the regular signatory: 1. Only one official next-in-rank – automatically be the signatory 2. 2 or more next-in-rank – appropriate office prescribe order 3. No next-in-rank – head shall designate an OIC Public disclosure of statements of assets and liabilities. Public official and employees have an obligation to accomplish and submit declarations under oath, and the public has the right to know, their assets, liabilities and net worth and financial and business interest including those of that of the spouse and unmarried children under 18. 1. Statement of assets and liabilities and financial disclosure – All public officials and employees except those in honorary capacity, laborers and casual or temporary workers shall file SALN.

a. Contents. Two documents shall contain information on the following:

i. real property, improvements, acquisition costs, assessed value, FMV ii. personal property, acquisition cost iii. all other assets like investment, cash on hand or in banks, stocks, bonds iv. financial liabilities, current and long-term v. all business interests and financial connections whether as proprietor, investor, promoter, shareholder, officer, managing director, creditor, lawyer, legal consultant, or adviser, financial or business consultant, accountant, auditor, and the like, the names and old addresses of the business enterprises or entities, the dates when such interests or connections were established and such other details as will show the nature of the interest or connections.


b. When to file

i. within 30 days after assumption of office ii. on or before April 30 of every year iii. within 30 days after separation from service

c. Where to file:

i. President, VP, Constitutional officials, with the National Office of the Ombudsman ii. Senators and Congressmen, with the Secretaries of the Senate and the House of Rep, respectively; Justices, with the Court of Administrator; and all national executive officials, such as members of the Cabinet, Undersecretaries, and Assistant Secretaries, including the foreign service and heads of GOCC with original charters and their subsidiaries and state colleges and universities, with the office of the President. iii. Regional and local officials and employees, both appointive and elective, including other officials and employees of GOCC and their subsidiaries, with the Deputy OMB in their respective regions. v. Officers of the armed forces from the rank of colonel or naval captain, with the Deputy OMB in their respective regions v. All other public officials and employees, defined in RA 3019, as amended with the CSC

A copy of the statement shall be filed with their respective departments. d. authority in favor of ombudsman – officials shall execute necessary authority in favor of the ombudsman to obtain documents that may show their assets, liabilities and net worth, other business and financial connections within 30 days from assumption of their office.

2. Identification and disclosure of relatives – identify relatives in the government which shall include up to fourth civil degree of relationship, either of consanguinity or affinity, including bilas, inso, and balae. 3. Accessibility of documents

a. statements made available for inspection at a reasonable hour b. made available for copying or reproduction after 10 days from the time they are filed c. pay reasonable fee to cover the cost of reproduction and mailing and certification d. available to the public for a period of 10 years after receipt of statement. Afterwards, it shall be destroyed unless needed in an ongoing investigation.

e. execute authority in favor of the Ombudsman 4. Prohibited acts – obtain or use any statement

a. for any purpose contrary to morals or public policy b. for any commercial purpose other than by news and media communication for dissemination to the general public

5. Review and compliance procedures – determine is properly accomplished

a. In case of Congress, the designated committees of both houses, subject to approval by affirmative vote of majority of each house b. In Executive department, the heads of departments, agency, or offices, subject to approval by secretary of DOJ c. In Judicial department, the chief justice d. In ConComs and other constitutional officers, the chairmen, In office of the ombudsman, the ombudsman

Transparency of transactions and access to information. 1. Ensure transparency of public transactions – The Dept, offices, agencies has responsibility to establish measures and standards that will ensure transparency of and openness in public transactions in their offices 2. Provide official information – provide information to any requesting public except:

a. Information must be kept secret in the interest of national defense or security or conduct of foreign affairs b. Put the life and safety of someone in imminent danger c. Information falls within the concepts of privileged information d. It comprises of drafts of decisions, orders, rulings, policy-decisions e. It would disclose information of a personal nature and would constitute unwarranted invasion of privacy f. It would disclose investigatory records compiled for law enforcement purposes, or the production of records would:

i. interfere with enforcement proceedings ii. deprive a person of a right to fair trial or impartial adjudication iii. disclose identity of a confidential source iv. unjustifiably disclose investigative techniques and procedures

g. It would disclose information, premature disclosure would:


i. lead to significant financial speculations or significantly endanger the stability of any financial institution ii. it would significantly frustrate implementation of proposed official action except the letter (f)(ii) shall not apply in any instance where the department, office or agency has already disclosed to the public the content or nature of its proposed action, or where the department, office, or agency is required by law to make such disclosure on its own initiative prior to taking official action on such protocol.

3. Establish information systems – effect the widest possible dissemination of information, and such information systems must inform the public:

a. policies, rules, procedures b. work programs, projects, performance targets c. performance reports d. all other documents

Such information cannot be used to build public image or advance his own personal interest. Reforms on public administrative systems. 1. Conduct value development programs – Such Program shall include

a. ethical and moral values b. rights, duties and responsibilities of public servants c. nationalism and patriotism d. justice and human rights e. democracy in a free and just society f. Philippine history, culture, tradition g. Socio-economic conditions

Continuing refresher courses to promote a high standard of ethics in public service shall be conducted. 2. Conduct professional, etc. programs – enhance to the highest degree, professionalism, excellence, intelligence and skills in the performance and discharge of duties and responsibilities 3. Conduct studies and analyses of work systems. Such system shall:

a. identify systems and procedures that lead or contribute to negative bureaucratic behaviors b. simplify rules and procedures to avoid red tape c. devise or adopt systems and procedures that promote official and employee morale and satisfaction

4. Develop and make available a service guide – workflow chat showing procedures or flow of documents. Aims to institutionalize a management climate conducive to public accountability 5. Consult the public for feedbacks and suggestions 6. Conduct research and examination – provide motivation to officials in raising the level of observance of public service ethical standards 7. Designate a resident ombudsman – act immediately on all requests for public assistance 8. Consult and dialogue with staff


Chapter Five RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS

A. In General

Rights incident to Public Office. Rights of one elected or appointed to office, are in general, measured by the Constitution or the law under which he was elected or appointed. Where an office is created by a statute, the rights of an officer elected thereunder are measured by the statute except insofar as he may be protected by any provision of the Constitution. The powers and duties of public officers are prescribed by the Constitution, or by Statute or both. Rights as a Citizen 1. Protection from publication commenting on his fitness and the like – The mere fact that one occupies a public office does not deprive him of the protection accorded to citizens by the Constitution and laws. They are not entitled to the same protection from publications commenting on his fitness, and the like, as what is accorded to citizens. 2. Engaging in certain political and business activities – The governmental interest in maintaining a high level of service of its employees in the performance of their tasks may require public employees to suspend or refrain from certain political or business activities which are embraced within the constitutional rights of others, when such activities are reasonably deemed inconsistent with their public status and duties To justify restrictions – the government must show that the restraints RATIONALLY relate to the enhancement of the public service

B. Right to Compensation Power of Congress to fix compensation. 1. Power primarily but not exclusively legislature in character – The power is primarily legislature although not exclusive. Example is if the office is created by the constitution, the Constitution itself may provide the compensation or may entrust the matter to congress. 2. Power may be delegated subject to statutory limitations – The power to fix the compensation of public officers is not inherently and exclusively legislative in character. It may delegate the power to other governmental bodies or officers, as for example, governor, mayor, or sangguniang bayan, or other officers or official boards. Administrative boards or other officers may fix compensation and such discretionary action is not ordinarily reviewable by the courts.

Compensation, not an element of public office. Compensation is not indispensable to a public office. it is not part of the office but merely incident thereto, and attaches to the office itself, and not to the officer. In fact, it is sometimes expressly provided that certain officers shall receive no compensation, and a law creating an office without any provision for compensation may carry with it the implication that the service are to be rendered gratuitously. Forms of compensation defined and distinguished 1. Compensation – pay for doing all that may be required of the official, whatever it is in the form of a fixed salary or wages, per diems, fees, commissions or perquisites of whatever character. Honorarium – something given not as a matter of obligation but in appreciation for services rendered, a voluntary donation in consideration of services which admit of no compensation in money 2. Salary – personal compensation to be apid to him for his services; a fixed annual or periodical payment depending on the time and not on the amount of the services he may render; given to officers of higher degree of employment than those to whom wages are given; regarded as compensation per annum Wages- paid day by day or week by week 3. A per diem – this is fixed not as ordinarily by the year or by the month but by the day. A per diem is not deemed to be a salary within a constitutional provision that no change in the compensation of officers shall affect the salary of any officer during his existing term. it is not fee unless clearly classified as such. So also is an honorarium defined as something given not as a matter of obligation, but in appreciation for services rendered, a voluntary donation in consideration for services which admit of no compensation or money (Ex. Monthly allowance given by the LGUs to judges assigned within their territorial jurisdictions). 4. Sometimes the compensation is made to depend fees for service rendered, or on commission on moneys officially passing through their hands. A maximum sum may be fixed beyond which the officer is not to receive any emoluments. 5. Emoluments – profit arising from the office, that which is rendered as compensation for services or which is annexed to the office as salary, fees, or perquisites. It includes such fees and compensation as the incumbent of the office is, by law, entitled to receive. The term has been held to include salary, fees, compensation, perquisites, pensions, and retirement benefits Basis of right to compensation 1. Creation of law – his right to compensation is not the creation of contract because it exists as the creation of law (constitution, statute or ordinance). When compensation exists, it belongs to him not by force of any contract but because the law attaches it to the office


2. Services rendered – the right to compensation grows out of the rendition of services. After services have been rendered by a public officer, the compensation earned cannot be taken away by a subsequent law, but cannot recover, as a rule, salary for a period during which he performed no services. Under the principle “no work, no pay” principle, compensation paid only for service actually or constructively rendered 3. Compensation fixed by law – if no compensation is fixed or attached by law, the public officer is presumed to have accepted the office to serve gratuitously 4. Legal title to office – one without a legal title to office either by lawful appointment or election and qualification is not entitled to recover salary or compensation attached to the office 5. Amount of compensation – Section 5, Article 9B of Constitution: “The Congress shall provide for the standardization of the compensation of government officials, including those in government-owned or –controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions. RA. No. 6758 (An Act Prescribing a Revised Compensation and Position Classification System in the Government) provides that differences in pay are to be based “upon substantive differences in duties and responsibilities and qualification requirements of the positions.” The nature of the official’s position should be the determining factor in fixing of his or her salary. Law employs the scheme known as grade – although different with respect to kind or subject matter of work, are sufficiently equivalent as to level of difficulty and responsibilities and level of qualification requirements of the work to warrant the inclusion of such classes of positions within one range of basic compensation. It is the official’s grade that determines his or her salary, not the other way around. 6. Ex-officio position – this is actually in legal contemplation part of the principal office. The official concerned has no right to receive additional compensation for his services in said position Recovery of compensation An action to recover the compensation attached to a public office belongs to the person who has the true, rather than the colorable, title to the office, for in such action the title to the office is put in issue 1. From the government – A de jure officer cannot recover from the government salary or compensation which has been paid to a de facto officer. It is a matter of justice that the emoluments must go to the person (de facto officer) who actually rendered the service unless the contrary is provided 2. From de facto officer – as a corollary rule to the above, a de jure officer can recover either from the government or the de facto officer the amount paid to the de

facto officer for services rendered by him after notice of adjudication of the title to the former. Where the tenure of the de facto officer is “wrongful” the salary received by him during such tenure may be recovered From the intruder or usurper – one who intrudes into or usurps a public office has no righ tot the salary or emoluments attached to the office. he stands even in a less favorable position than an officer de facto Salary not subject to garnishment Garnishment is a species of attachment for reaching credits belonging to the judgment debtor owing to him from a stranger to a litigation Reasons: 1. While the money is still in the hands of the disbursing officer, it belongs to the government 2. Public policy forbids such practice since it would be fatal to the public service 3. The garnishment or attachment of an officer’s salary is tantamount to a suit against the State in its own court, which is prohibited except with his consent Agreements affecting compensation Agreement by a public officer respecting his compensation may rightfully be considered invalid as against public policy where it tends to pervert such compensation to a purpose other than for which it was intended 1. Agreement to accept, or acceptance of less or other than legal compensation – illegal 2. Sale, assignment or barter – the salary or emoluments of public office are not considered proper subject of barter and sale. Public policy prohibits the assignment of unearned salaries or fees 3. Dividing compensation with others – agreement is invalid; this amounts to an anticipatory assignment of the emoluments of the office. Such bargains create no legal obligation. The fact that the officer may be a party to the crime in illegal contract does not defeat his right to recover the compensation allowed by law, for it does not depend upon the contract, but upon the provisions of the law fixing the compensation Prohibition against diminution of salary Except as otherwise provided by the Constitution, Congress has absolute power to fix or alter the compensation of public officers. Under the Const, Congress is given the power to fix the salaries of certain Constitutional officers, but after it has done so, it may not reduce the salary of any of them during his term or tenure.


Salaries of persons which cannot be decreased: President, VP, Chief Justice and Associate Justices of the SC, Judges of lower court, Chairmen and members of the Constitutional Commissions and Ombudsman and his deputies Prohibition against receiving additional , double, or indirect compensation “No elective or appointive public officer employee shall receive additional, double, or indirect compensation UNLESS specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. Pensions and gratuities shall NOT be considered as additional, double or indirect compensation” This prohibition does not apply: 1. Where the employee is specifically authorized by law in individual instances where the payment of such compensation appears not only just but necessary 2. Where the additional compensation is received not from the government or any of its entities 3. Where there are two distinct offices, each of which ahs its own duties and compensation, in which case both may be held by one person at the same time Free voluntary service to the government Free voluntary service – services rendered by persons who are in the government without pay or compensation 1. Requirements

a. Issuance of an appropriate document b. Fitness and suitability for the duties and responsibilities of the particular position c. Compliance with the rule on nepotism

2. What they can perform

a. Advisory b. Consultancy or counselling c. Recommendatory d. Professional services e. Staff work such as planning or research f. Humanitarian

3. Applicable laws and rules – Code of Conduct and Ethical Standards and Employees and implementing rules on:

a. Rewards and incentives b. Norms of conduct and ethical standards c. Duties and obligations of public officers and employees

d. Prohibitions and sanctions enumerated in the Implementing rules e. Civil and Criminal liability

4. Exemptions – They are exempted from filing statements of assets, liabilities and net worth and financial disclosure, the requirement on divestment, and the appropriate eligibility requirement for their designations, and shall NOT enjoy security of tenure 5. Prohibitions

a. Exercising supervisory functions over personnel b. Exercising functions of positions involving national security c. Having access to confidential or classified information unless authorized by proper authorities d. Occupying regular plantilla positions e. Having such services credited as government service and availing themselves of retirement benefits f. Using facilities and resources of the office for partisan political purposes g. Receiving any pecuniary benefit such as honoraria allowance and other perquisite of office

C. Other Rights

Rights under the Constitution 1. The right to self-organization – this shall not be denied to government employees. The constitution grants to government employees in the civil service the right to form unions enjoyed by workers in the private sector Section 8 of Article 3 – “Right of the people including those employed in the public and private sectors to form associations, unions, or societies for purposes not contrary to law shall not be abridged” Section 3 Par 2 of Article 13 which mandates the State to “guarantee the rights of all workers to self organization, collective bargaining and negotiations and peaceful concerted activities, including the right to strike in accordance with law” 2. The right to protection of temporary employees – They do not enjoy security of tenure. They may be replaced any time a qualified civil service eligible becomes available, or at the discretion of the appointing authority with or without cause notwithstanding that their performance meets the standards of public service demanded of them. 3. Freedom of members of Congress from arrest and from being questioned - Section 11 of Article 6 of Const. – “A Senator or Member of the House of Representatives


shall, in all offenses punishable by not more than 6 years imprisonment, be privileged from arrest while Congress in session. No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.” - This grants parliamentary immunities to members of Congress 4. The right not to be removed or suspended except for cause provided by law - Implicit in the Constitutional prohibition against removal or suspension EXCEPT for cause is the: 1) existence of a charge 2) due hearing 3) finding of guilty by the proper authority Participation in prohibited activity or mass action This refers to any collective activity undertaken by the government employees either by themselves or through their employees’ organizations, with the intent of effecting work stoppage or service disruption in order to realize their demands or force concessions, economic or otherwise, from their respective agencies or the government Concerted activity done outside government office hours may be allowed and shall not be deemed prohibited so long as such would not result in disruption of work 1. Government workers can form associations for purposes not contrary to law. The constitutional grant to government workers of the right to form labor organizations or unions does NOT guarantee them the right to bargain collectively with the government or to engage in concerted activities including the right to strike, which are enjoyed by private employees. 2. Since the terms and conditions of government employees are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employees. Any government employees who join or participate in prohibited concerted activity shall be held administratively liable for the offense of conduct prejudicial to the best interest of the service Government agencies shall not approve or warrant mass leave of absences which occur when five or more employees apply for leave simultaneously or almost at the same time under circumstances evidencing collusion or common design to participate in a prohibited mass action. They must have the right to collective negotiation which is a new concept in the Constitution for resolving disputes or potential ones between employer an employees. Intended primarily for unorganized labor and government workers, it calls for discussion rather than confrontation in order to reach a solution to issues affecting both parties Rights under the Civil Service Degree and the new Administrative Code 1. The right to preference in promotion - When a vacancy occurs in a position in the first and second level of the Career service, the employees in the department who occupy the next lower positions in the occupational ground under which the vacant position is classified, shall be considered for promotion

Each department or agency shall evolve its own screening process, which may include test of fitness in accordance with the standards and guidelines set by the Civil service If the vacancy is not filled by promotion as provided above, the same shall be filled by transfer of present employees in the government service, by reinstatement, by reemployment of persons separated through reduction in force, or by appointments of persons with the civil service eligibility appropriate to the positions A qualified next in rank employee shall have the RIGHT TO APPEAL initially to the: 1. Secretaries or heads of agencies or instrumentalities including GOCCs with original charters, and then to the 2. Merit System Protection Board, and finally to 3. Civil Service Commission. Qualified next-in-rank refers to an employee appointed on a permanent basis to a position previously determined to be next-in-rank to the vacancy proposed to be filled and who meets the requisites for appointment thereto as previously determined by the appointing authority and approved by the Commission The nature of a protest case filed with the CSC questioning an appointment is not strictly an adversary proceeding where the protestant and protestee play active roles. It is an action of the protestant against a determination made by the appointing authority. Indeed, it is the appointing authority adversely affected where the CSC disapproves the appointment made. Its participation in the determination of the issue is INDISPENSABLE 2. The right to present complaints and grievances – Employees have the right to present their complaints or grievances to the management and have them adjudicated as expeditiously as possible in the best interest of the agency, the government as a whole, and the employee concerned. It shall be resolved at the lowest possible level in the department or agency 3. The right not to be suspended or dismissed except for cause as provided by law and after due process 4. Right to organize – Government shall not be discriminated against in respect of their employment by reason of their membership in employees’ organizations or participation in the normal activities of their organizations Next-in-rank rule Not a mandatory requirement – it applies only to cases of promotion. It neither grants a vested right to the holder not imposes a ministerial duty on the appointing authority to promote such person to the next higher position. It is given PREFERENTIAL consideration for promotion to a vacant position, but it does not necessarily follow that he alone and no one else can be appointed


Reason – the appointing authority is granted DISCRETION and prerogative of choice of the one he deems fit for appointment. All that a CSC is actually allowed to do is to check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. Discretion of the appointing authority – the appointing authority, under the law, is allowed to fill vacancies by promotion, transfer or present employees, reinstatement, re-employment and appointment of outsiders who have appropriate civil service eligibility, not necessarily in order Personnel actions This means any action denoting the movement or progress of personnel in the civil service 1. Appointment through certification – an appointment whereby the person appointed has been selected from a list of qualified persons certified by the CSC from an appropriate register of eligibles and who meets all other requirements of the position 2. Promotion – advancement from one position to another with an increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay Any increase in salary should only be considered incidental but never determinative of whether or not a promotion is being bestowed upon an employee There is no law that compels an employee to accept a promotion for the reason that a promotion is in the nature of a gift or reward, which a person has a right to refuse 3. Transfer – movement from one position to another which is of equivalent rank, level or salary without break in service involving the issuance of an appointment It shall not be considered disciplinary when made in the interest of public service The transfer may be from one department or agency to another (detail) or from one organizational unit to another in the same department or agency (reassignment) Any movement from non-career service to the career service shall not be considered a transfer 4. Reinstatement – restoration to a state or condition from which one has been removed or separated The award for backwages has been limited to a maximum period of 5 years Where the reinstatement involves the exercise of sound judgment and discretion by the appointing power, absent a showing of clear and certain right by a separated employee, the remedy of mandamus is not available

5. Reemployment – names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/or reorganization, shall be entered in a list from which selection or reemployment shall be made 6. Detail – movement of an employee from one department or agency to another without the issuance of an appointment and shall be allowed only for a limited period in the case of employees occupying professional, technical and scientific positions 7. Reinstatement – an employee may be reassigned from one organizational unit to another in the same department but such reassignment shall not involve a reduction in rank, status or salary. It does not require the issuance of an appointment 8. Demotion- movement from one position to another involving the issuance of an appointment with diminution in duties, responsibilities, status, grade or rank which may or may not involve reduction in salary, although usually accompanied by a decrease in salary A demotion by assigning an employee to a lower or less important position in the same service which has a lower rate of compensation is tantamount to removal, if no cause is shown for it Pensions These are regular allowances paid to an individual or group of individuals by the government in consideration of services rendered, or in recognition of merit, civil, or military It is not a gratuity but rather a form of DEFERRED compensation for services performed and his right thereto commences to vest upon his entry into retirement system and becomes an enforceable obligation in court upon fulfillment of all conditions under which is to be paid Where the employee retires and meets the eligibility requirements, he acquires a VESTED RIGHT to benefits that is protected by the due process guarantee It partakes of the nature of “retained wages” – 1) to entice or encourage faithful and competent employees to enter or remain in service 2) allow employees who have become incapacitated by illness to continue discharging the duties to retire from service with a relative financial security

Gratuity Pension

Donation and act of pure liberality on the part of the state

More than an ct of generosity. It is an act of justice emanating from the desire to provide, though tardily, adequate compensation for services already rendered for which one had not received complete and adequate reward at the time when such services were actually rendered

Construction of retirement laws


Retirement laws or statues creating pensions being remedial in character, should be liberally construed and applied in favor of persons intended to be benefited by them, and all doubts as to the intent of the law should be resolved in favor of the retiree to achieve its humanitarian purposes so that the efficiency, security and well being of government employees may be enhanced Right to reimbursement and indemnity When a public officer, in the due performance of his duties, has been expressly or impliedly required by law to incur expenses on the public account, not covered by his salary or commission and not attributable to his own neglect or default, the reasonable and proper amount thereof forms a legitimate charge against the public for which he should be reimbursed Right to reinstatement and back salary These are separate distinct reliefs given to an illegally dismissed official or employee Reinstatement – restoration to a state or condition from which one had been removed or separated. One who is reinstated assumes the position he had occupied prior to the dismissal Back salary – form of relief that restores the income that was lost by reason of unlawful dismissal 1. When removal or suspension lawful – one who has been lawfully separated or suspended from his office is NOT entitled to compensation for the period during which he was so suspended or separated, even if it be subsequently determined that the cause for which he was suspended was insufficient Denial of salary to an employee during the period of his suspension if he should be later found guilty is proper because he had given ground for his suspension 2. Where removal or suspension unlawful – where an officer entitled to fixed annual salary was unlawfully removed or suspended and was prevented for a time by no fault of his own from performing the duties of the office, it was held that he might recover, and that the amount that he had earned in other employment during his unlawful removal should not be deducted from his unpaid salary What is material is not the nature of the appointment but the act of wrongful deprivation of office. if the illegal dismissal is found to have been made in bad faith by the superior officers, then they will be held PERSONALLY accountable for the back salaries of the illegally dismissed employee Award of backwages Is limited to a maximum period of FIVE years. But an officer claiming back his office is not entitled to salary during the pendency of the case 3. Where suspended employee later found innocent – backpay may be allowed for the period when an employee is not allowed to work without his fault as when he was preventively suspended for alleged dishonesty and gross negligence but later found innocent of the charges causing his suspension

To deny an innocent employee his backwages during his suspension would be tantamount to punishing him after his exoneration from his charges which caused his dismissal from service A party’s claim for backwages may be the appropriate subject of an ordinary civil action NOT mandamus 4. Where employee not completely exonerated or reinstatement not the result of exoneration – if the employee is not completely exonerated of the charges, such as when the penalty of dismissal is reduced to mere suspension or to a fine, he would not be entitled to the payment of back salaries 5. Where another appointed to position of illegally dismissed or suspended employee – when an regular government employee was illegally suspended or dismissed, legally speaking, his position never became vacant and he is considered as not having left his office 6. Duty of plaintiff seeking reinstatement to prove his right to the office – he must establish that when dispossessed, he was entitled to the office. In a quo warranto proceeding, the person suing must show that he has clear right to the office allegedly held unlawfully by another. Absent such right, the lack of qualification or eligibility of the supposed usurper is immaterial 7. Right to reinstatement to former or at least comparable position – when a government official or employee has been illegally dismissed, and his reinstatement has later been ordered, for all legal purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges to accrue to him by virtue of the office he held 8. Duty to act with reasonable diligence in asserting right to reinstatement - it is not proper that the title to public office should be subjected to continued uncertainty, and the people’s interest requires that such right should be determined as speedily as practicable. The laws aid the vigilant and not those who slumber on their rights A petition for quo warranto and mandamus affecting titles to public office must be filed within one (1) year from the date the petitioner is ousted from position. The claim for back salaries and damages is also subject to the prescriptive period of one (1) year 9. Where pardon extended to convicted employee – a pardon, unless expressly grounded on the person’s innocence or unless the right to a public office is expressly restored by it, does NOT ipso facto restore a convicted felon to public office. it merely restores his eligibility for appointment to that office, and to regain his former post, he must re-apply and undergo the usual procedure required for new appointment Rights to property, devices, and inventions 1. Title to a public office carries with it the right, during the incumbency of the officer, to the insignia and property thereof


2. The question whether the records or discoveries made or prepared by an officer while he is occupying the office, belong to the public, must be determined with reference to the facts of the case If they are indispensable in the proper conduct of office, the officer may NOT take them as his own property even though he has prepared them on his own time and paid form them with his own funds If they are not required by law and are prepared by the officer apart from his official duties and are not indispensable, they the officer may acquire a property right therein Right to recover reward for performance of duty It is the duty of a public officer to execute the functions of his office for the compensation attached to it by law, and he will not be permitted, unless expressly authorized by law, to recover a reward offered by the public for the performance of an act which was part of his official duty to perform if he could


Chapter Six DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS

A. Under the Constitution

Disabilities of President, Vice-President, Members of Cabinet, and their Deputies and Assistants. During their tenure, they are subject to these prohibitions: 1. They shall not hold, unless otherwise provided in the Constitution, any other office or employment. 2. They shall not practice any other profession. 3. They shall not participate, directly or indirectly, in any business. 4. They shall not be financially interested, directly or indirectly, in any contract with, or in any franchise or special privilege granted by the government or any subdivision, agency or instrumentality thereof, including any GOCC or their subsidiaries. 5. They shall strictly avoid conflict of interest in the conduct of their office. The President is also prohibited during his tenure from appointing his spouse and relatives by consanguinity or affinity within the fourth civil degree. Purpose: To insure that the officials will devote full time and attention to their official duties, prevent them from extending favors to their business and to assure public of faithful performance of their functions. Disabilities of Members of Congress. Disability to their right to hold any other office or employment 1. They may not hold any other office or employment in the government or any of its subdivision, agency or instrumentality, including any GOCC or their subsidiaries during their term without forfeiting his seat. 2. They cannot be appointed to any office that may have been created or the emoluments increased during the term for which he was elected.

Incompatible office – (refers to number 1) It includes any position in the government outside of Congress, including ex officio membership of any non-congressional body, committee or commission in any guise whatsoever, unless the second office or employment is connected with or in aid of legislative duties.

Forbidden office – (refers to number 2) The period for ineligibility does not end until after the member’s term has expired not his tenure. Hence, he shall still be ineligible for appointment to such office even if he resigns or losses his seat before the end of his term.

Disability to their right to engage in certain activities 3. They may not personally appear as counsel before any court, election tribunal, or quasi-judicial body.

Purpose: To remove any possibility of undue influence upon the judges of the courts or heads of these bodies. Moreover, the appearance is prohibited even if no fees are charged for it.

4. They shall not be financially interested, directly or indirectly, in any contract with, or in any franchise or special privilege granted by the government or any subdivision, agency or instrumentality thereof, including any GOCC or their subsidiaries during his term of office.

Financial interest – is any contract that involves financial investment or business out of which he derives profit or gain. However, borrowing money from a GOCC is cannot be considered as such.

The prohibition on financial interest in any contract with the government extends to his spouse. However, it does not extend to his brother or son unless used as a dummy.

Purpose: To prevent him from using his influence and pressure in the awards of government contracts or for the purpose of financial benefit or reward.

5. They shall not intervene in any government office for his pecuniary benefit or where he may be called upon to act on account of his office.

Purpose: To insure that every vote on any pending legislative measure shall be dictated by no other consideration than public good whether or not he derives pecuniary benefit or not.

Disabilities of members of Constitutional Commissions. 1. They shall not hold any other office or employment. 2. They shall not engage in the practice of any profession or in the active management or control of any business that in any way may be affected by the functions of his office. 3. They shall not be financially interested, directly or indirectly, in any contract with, or in any franchise or special privilege granted by the government or any subdivision, agency or instrumentality thereof, including any GOCC or their subsidiaries. Prohibition against designation of members of judiciary to administrative positions. The members of the Supreme Court and of other courts established by law shall not


be designated to any agency performing quasi-judicial or administrative bodies. Reasons for the prohibition: 1. The designation violates the doctrine of separation of powers. 2. It may compromise the independence of members. 3. It will result to further delay in the disposition of cases pending in the courts. Prohibition against engaging in partisan political activities. Officers and employees of the CSC and members of the military are prohibited from engaging directly or indirectly in any partisan political activity. Partisan politics – acts designed to have a candidate elected or not, or to promote the candidacy of a person to a public office. It is also synonymous to electioneering or partisan political campaign. The prohibition covers only career service employees. Elective officials and cabinet members who are holding political offices are not embraced in the prohibition. Prohibition against appointment of elective officials. During his tenure in office, an elective official is disqualified for appointment or designation to any public office or position in the government. Appointment to the later office is void. Exception: The appointment will be valid if he resigns from his elective seat. Prohibition against holding more than one position by appointive officials. An appointive official may hold any other office or employment in a GOCC only when allowed by law or required by his primary functions. Case 1: When allowed by law, the positions may be totally unrelated to each other. Case 2: When the functions are related, the prohibition does not applyeven in the absence of an enabling law. Purpose: Appointive officials should devote their full time to their principal functions. Prohibition against acceptance of any present from any foreign state. What is prohibited is the acceptance of a present officially offered by the government of the foreign state. However, it is permissible for an official of the Philippines to accept a private or personal gift from the head of a foreign government. The prohibition is directed only against public officers and not private citizens. Purpose: To discourage and prevent foreign influence in the affairs of our government. Prohibition against receiving additional, double or indirect compensation. Elective or appointed officers or employees shall not receive additional, double or indirect compensation.

Pensions and gratuities shall not be considered additional compensation. Prohibition against appointment of members of the armed forces to certain positions. Members of the armed forces in active duty are prohibited from being appointed or designated in any capacity to a civilian position. Prohibition against grant of loan, guaranty or other form of financial accommodation. No form of financial accommodation for any business purpose may be granted by any GOCC bank to the President, VP, members of the cabinet, congress, SC, ConComs, Ombudsman, and any firm or entity in which the officials have a controlling interest during their tenure. The prohibition does not apply to personal loans or to firms wherein he has no controlling interest. Purpose: To prevent the public officials from using their influence to secure a loan for personal benefit.

B. Under Existing Laws Prohibition imposed on civil service officers or employees. 1. Political activity – cannot engage in any partisan political activity or take part in any election campaign except to vote nor shall use official authority or influence to coerce political activity of another person. This does not extend to expressing views on current political issues or from mentioning names of candidates whom he supports. Those holding political offices may take part in political activities but are prohibited from soliciting contributions from subordinates. 2. Additional or double compensation – elective or appointive official cannot receive additional or double compensation unless authorized by law, nor can they accept any present, emolument, office or title of any kind from a foreign state unless it is with the President’s consent 3.Limitation on employment of laborers – laborers shall not be assigned to perform clerical duties 4. Prohibition on detail or reassignment– no detail or reassignment within 3 months before any election 5. Nepotism – cannot appoint members of the family within the third degree either of consanguinity or of affinity. However, the prohibition is subject to exceptions. Prohibition imposed on local government officials. 1. Prohibited business and pecuniary interest– unlawful for any local government official or employee directly or indirectly to:

a. engage in business transactions with LGU in which has the power of


supervision or where he is an official whereby money or property is to be transferred from the LGU to another person or firm b. hold interests in any cockpit or other games licensed by the LGU c. purchase real property forfeited in favor of the LGU for unpaid taxes or by virtue of a legal process d. be a surety for any person contracting with the LGU e. possess or use any public property of the LGU for private purposes f. all other prohibitions relating to conduct of business provided for in the Code of Conduct and Ethical Standards for Public Officials and Employees and other applicable laws

2. Practice of profession

a. governors, mayors prohibited from practicing their professions or engaging in any occupation other than exercise of functions as local chief executives b. sanggunian members may practice their professions or engage in any occupation except during session hours. However, those who are members of the bar shall not:

i. appear as counsel before any court in any civil case where the LGU is adverse party ii. appear as counsel in criminal case where official of government is accused of an offense in relation to his office iii. collect any fee for appearance in administrative proceedings involving his LGU iv. use property and personnel of the government except when sanggunian member is defending interest of the government

c. doctors may practice profession even during work hours only in occasions of emergency, provided that officials concerned do not derive monetary compensation

3. Partisan political activity– No local official in the career civil service shall engage in partisan political activity. However, elective officials can engage in partisan political activities but cannot solicit contributions from subordinates or subject them to any prohibited acts under the Omnibus Election Code. Prohibition against purchase of certain property at public auction under the Civil Code. 1. Public officers, the property of the State thathas been entrusted to them. The prohibition applies to judges and government experts taking part in the sale.

2. Justices, judges, prosecutors, etc., the property and rights in litigation or levied upon an execution before their court. It includes acquiring by assignment and shall also apply to lawyers with respect to property and rights that may be the object of litigation. For the prohibition to operate, the sale or assignment must take place during the pendency of the litigation involving the property. Prohibitions imposed on the Governor and personnel of the Central Bank. 1. Outside interest of the Governor and Full-time Monetary Board Members– The BSP Governor and the monetary board members are required to limit their activities with the Bank. General rule: They may not accept other employment. Exception: They can accept employment if the positions are for eleemosynary organizations or by designation of the President that they represent the interest of the government or its agency. 2. Personnel- They are also prohibited from:

a. being an officer, director, employee or stockholder directly or indirectly of an institution supervised by the BSP unless it is a non stock savings and loan association and provident funds for BSP employees b. requesting or receiving gifts or pecuniary benefit from an institution supervised by the BSP c. revealing in any manner except under order of the court or Congress or government office authorized by law or under such conditions as may be prescribed by the board, information relating to the condition or business of any such institution. This prohibition does not apply if the information is for the Board or the Governor or person with written authority to receive it. d. borrowing from any such institution unless the loan is adequately secured, fully disclosed to the board. Personnel of the supervising and examining departments are prohibited from borrowing from a bank under their supervision or examination.

Prohibitions imposed on internal revenue officers or employees. 1. Divulging information about the tax payer acquired by him in the discharge of his official duties. 2. Becoming interested directly or indirectly in manufacture, sale or importation of any article subject to tax. Prohibited acts and transactions under the Anti-Graft and Corrupt Practices Act. 1. Influencing another officer to perform an act that violates lawful rules or an offense connected to official duty, or allowing himself to be influenced;


2. Requesting or receiving any gift in connection with a government contract or transaction; or consideration for help to get license 3. Causing undue injury to any party or giving private party unwarranted benefit, advantage or preference 4. Entering, on behalf of the government, any contract manifestly and grossly disadvantageous to the same 5. Having financial or pecuniary interest in any business, contract or transaction in which he is prohibited by law from having any interest 6. Becoming interested, for personal gain, or having material interest in a transaction requiring approval of the board of which he is a member, whether he gives a favorable vote or not 7. Approving or granting license to anyone known to him as not qualified Penalties: imprisonment, perpetual disqualification from office and confiscation or forfeiture. Those involved in fraud upon government property shall bepreventively suspended. Prohibited acts and transactions under the Code of Conduct and Ethical Standards. Public officials under this code includes: 1. Financial and material interest – shall not have any financial or material interest in any transaction requiring his approval 2. Outside employment and other activities related thereto– during their incumbency shall not:

a. own, control, manage or accept employment in any private enterprise regulated, supervised by his office unless expressly allowed by law b. engage in private practice of profession unless authorized by law, provided there is no conflict of interest c. recommend any person to a private enterprise that has transactions with his office Prohibitions continue to apply for a period of 1 year after resignation, retirement, or separation from public office except outside employment. However, the professional concerned cannot practice profession in connection with any matter before the office he used to occupy.

3. Disclosure and/or misuse of confidential information– shall not use or divulge, confidential or classified information officially known to him by reason of office and not made available to the public, either:

a. further private interest or give undue advantage to anyone b. prejudice public interest

4. Solicitation or acceptance of gifts – shall not solicit, accept any gift from any person in the course of their official duties

a. gift – thing or right disposed of gratuitously, or any act of liberality. It shall not include unsolicited gift of nominal or insignificant value not given in anticipation of any favor b. receiving any gift – accepting a gift from a person other than member of his family even on family occasions and celebrations such as Christmas in anticipation of or exchange of any favor c. loan – simple loan and commodatums well as guarantees intended to ensure approval

Congress must give consent to gifts and grants from foreign governments:

a. acceptance and retention by public official of a gift of nominal value received as souvenir or out of courtesy b. acceptance of gift in the nature of scholarship or fellowship grant or medical treatment c. acceptance of travel grants outside the Philippines of more than nominal value if acceptance is appropriate or consistent with interests of the Philippines, permitted by his head of office or agency

The Ombudsman is mandated to prescribe regulations necessary to carry out the purpose in the abovementioned provisions. The Code does not restrict or prohibit any educational, scientific, or cultural exchange programs subject to national security requirements. Divestment. 1.Public officials or employees must avoid conflicts of interest at all times. When a conflict of interest arises, shall resign from his position in any private enterprise within 30 days from assumption of office or divest him of shareholdings within 60 days from assumption. Moreover, if conditions for conflict of interest concur, divestment mandatory even if he has already resigned from his position in any private business enterprise. 2. The requirement of divestment shall not apply to those who serve the government in honorary capacity nor to laborers and casual temporary workers 3. Under the code:

a. Conflict of interest – when a public official is partner, stockholder of a private corporation and has substantial interest therein that may be opposed or affect the faithful performance of his duty


b. Substantial stockholder – person who owns directly or indirectly shares of stock sufficient to elect a director c. Divestment – the transfer of title or disposal of interest in property voluntarily, completely and actually depriving or dispossessing oneself of his right or title to it in favor another person other than his relative d. Relative – any person within the fourth civil degree of consanguinity and affinity e. Family of public officials – spouses, unmarried children under 18 years old


Chapter Seven LIABILITIES OF PUBLIC OFFICERS

A. In General

Doctrine of official immunity from liabilities for public officers. Rationale for official immunity – the promotion of fearless, vigorous and effective administration of policies of government; so as not to deter competent people from accepting public office; loss of valuable time caused by such actions; the unfairness of subjecting officials to personal liability for the acts of their subordinates. Official immunity and State immunity distinguished. Official immunity or immunity of public officials – it is more limited. It protects the public official from tort liability for damages arising from discretionary acts in the performance of his official duties. But an officer who exceeds the power conferred on him by law cannot hide behind this principle; the official becomes personally liable. State immunity – it directly protects the sovereign/government from tort liability. It does not apply in causes of action which do not seek to impose a charge or financial. The state is not bound by the mistake, neglect or wrongdoing of its agents and officers. Official immunity not absolute. 1. Suit to enforce liability for personal torts – mere allegation that a government officer is being sued in his personal capacity does not automatically remove him from official immunity. Neither does mere invocation of official character suffice to insulate the officer from liability for damages.

a. A public officer enjoys only qualified immunity. The protection afforded by official immunity generally applies only to activities within the scope of office that are in good faith and are not reckless, malicious or corrupt. But the general rule is that there is a presumption of good faith.

b. Where damages are sought in an action filed against a public officer which, if granted, could result in his personal liability, he may be properly represented by a private counsel.

2. Suit to compel performance of official duty or restrain performance of an act – the general rule is that state/government may not be sued without its consent and, in effect, a suit against a public officer for his official acts is a suit against the state. The exceptions are: a. A public officer may be sued as such to compel him to do an act required by law.

b. Where the government itself has violated its own laws, the aggrieved party may directly implead the government (even without filing his claim first with the COA as usually required) because the doctrine of state immunity cannot be used

as an instrument for perpetrating an injustice. Liability based upon and co-extensive with duty. The liability of a public officer is based upon and is co-extensive with his duty to the individual or to the public. If the officer does not owe any duty to the individual complaining, the individual has no right of action, even though he may have been injured by the action or non-action of the officer. Simply, an individual has no cause of action against a public officer for a breach of duty owing solely to the public. Three-fold responsibility of public officers for wrongful act or omission. 1. Civil liability to reimburse the injured party 2. Criminal liability if the law provides a penal sanction 3. Administrative liability An action for each can proceed independently of the others. The 3 remedies may be pursued simultaneously or successively. Criminal and civil cases different from administrative matters. 1. Purpose of criminal prosecution – punishment of crime Purpose of administrative proceedings – mainly to protect the public services 2. A prosecution in a criminal proceeding is not a bar to prosecution in an administrative proceeding and vice versa. Administrative cases are independent from criminal actions for the same act or omission. A dismissal or conviction in one action will not bar the filing of the other action and will not necessarily result in a similar finding in the other action. 3. In administrative cases, double jeopardy does not lie. 4. Basic premise – criminal and civil cases are different from administrative matters. The disposition in the 1

st two will not inevitably govern or affect the 3

rd and vice versa.

5. Concept of prejudicial question – involves only a civil and criminal case. (There is no prejudicial question where one case is administrative and the other is civil or criminal.) Proceedings against public officers. 1. Evidence and procedure

Type of Proceeding

Quantum of Evidence

Meaning Burden of proof on

Criminal proceedings

Proof beyond reasonable doubt

The evidence must be so strong that no other logical explanation can be derived from the facts except that the

Petitioner


defendant committed the crime

Civil proceedings

Preponderance of evidence

A balance of probabilities that it is more likely to be true than not true; that there is greater than 50% chance that the proposition is true

Plaintiff

Administrative proceedings

Substantial evidence

Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion

Complainant/ Petitioner

Administrative proceedings – technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in its strict judicial sense. 2. Right to be informed of findings and recommendations of an investigating committee in an administrative case – respondent is not entitled to be informed of the findings and recommendations of any investigating committee. He is only entitled to the administrative decision. 3. Object of administrative proceedings – it is improvement of public service and the preservation of the public faith and confidence in the government and not the punishment of the officer or employee. 4. Right to counsel – there is no law or jurisprudence which mandates the assistance by counsel in an administrative case. 5. Effect of death of respondent in administrative cases – general rule: does not preclude a finding of administrative liability. Exception: the death of respondent necessitates the dismissal of the administrative case upon a consideration of any of the following factors: 1) observance of respondent’s right of due process; 2) presence of exceptional circumstances in the case on the grounds of equitable and humanitarian reasons. Administrative liability incurred in a previous term by an elective official. 1. Re-election operates as electorate condonation of a previous misconduct – having been re-elected, an elective official is no longer amenable to administrative sanctions for infractions allegedly committed during the preceding term because each term is separate from other terms. Re-election to office operates as a condonation of the official’s previous misconduct to the extent of cutting off the right to remove him. This applies regardless of the date of filing of the administrative complaint as long as the wrongdoing was committed prior to the re-election date. 2. Condonation rule – does not apply to appointive officials. 3. Re-election of a public official extinguishes only the administrative but not the

criminal or civil liability incurred during the previous term of office. Art. 89 of RPC enumerates the grounds for extinction of criminal liability and the list does not include re-election to office. An administrative case involves only the person’s actuations as a public officer as they affect the public or populace he serves.

B. Civil Liability Requisites for recovery of damages arising from acts of public officers. In order to create the right of action, these must concur: 1. Damage to an individual 2. A wrong or violation of the right of an individual committed by a public officer The liability of public officers is only in their official capacity. General Rule: No judgment can be rendered to make them personally liable in their private capacity. Exception: When there is an allegation that such officials have maliciously and in bad faith acted outside the scope of their official authority or jurisdiction, public officials may be held responsible in their private capacities. Prevailing jurisprudence holding public officials personally liable for damages arising from illegal acts done in bad faith are premised on said officials having been sued both in their official and personal capacities. Absent any showing of bad faith, malice or gross negligence, every public official is entitled to the presumption of good faith and regularity in the performance/discharge of official duties. A public officer who commits tort or other wrongful act done in excess or beyond the scope of his duty is not protected by his office and is personally liable therefor. (Rama v. CA) Effect of contributory negligence of injured party. General Rule: Public officers should be made to answer in damages to all persons injured through their malfeasance, omission or negligence. Exception: If there is contributory negligence; the result complained of would have followed, notwithstanding their misconduct, or if the injured party himself contributed to the result in any degree by his own fault or neglect, the public officers cannot be held responsible. Liability of the President for official acts. 1. Criminal liability – the Chief Executive is the first man of the State; an offense against him is an offense against the State. 2. Liability for damages – to put the Chief Executive on trial is to put on trial the government itself. He should not be subjected to personal liability for damages


resulting from the performance of official acts except by express provision of law. Liability of other executive officials for official acts. 1. Functions involve exercise of discretion – Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights which any reasonable person would have known. 2. Reasons for immunity – the imposition of monetary costs for mistakes would deter the governmental decision maker from exercising his judgment independently, forcefully and in a manner best serving the public interest. Moreover, officials with a broad range of duties and authority must often act swiftly and firmly at the risk that an action deferred will be futile or constitute an abdication of office. 3. Acts of heads of executive departments – the acts of the secretaries, performed and rendered in the regular course of business, are presumptively the acts of the President unless disapproved by the President. Liability of legislative officials for official acts. 1. Privileges accorded members of Congress – Sec. 11, Art. VI of Constitution: A senator or Member of the House shall, in all offenses punishable by not more than 6 years imprisonment, be privileged from arrest while Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. 2. Reasons for immunity – to enable the representatives to execute the functions of their office without fear of civil or criminal prosecution. Because of this, a public legislative officer is not liable to individuals for his legislative action. The immunity is not confined to members of Congress but extends to the members of local legislative bodies. Liability of members of the judiciary for official acts. It is a general principle that no civil action or administrative sanction can be sustained against a judicial officer for the recovery of damages by one claiming to have been injured by the officer’s judicial action within his jurisdiction. 1. Reasons for immunity – a result of the civil or administrative action would be to occupy the judge’s time and mind with his defenses when he should be giving his time wholly to his public duties; it would result to lower the estimation of his office by the public; it would be an incentive to dishonest judgments and would invite him to consult public opinion and prejudices; and it would open each case to endless controversy. General Rule: A judge is not liable for acts done in the exercise of judicial function. Exception: The immunity does not apply to acts which are purely ministerial in nature or if there was fraud, dishonesty, corruption, bad faith, malice, deliberate intent to violate the law or a persistent disregard of well-known legal rules and principles in the

acts of a judge in his judicial capacity. 2. Liability for rendering an unjust judgment – a judge may be held criminally liable for dereliction of duty for knowingly rendering an unjust judgment or interlocutory order or for rendering a manifestly unjust judgment or order by reason of inexcusable negligence or ignorance.

a. It must be shown that the judgment is unjust as it is contrary to law or is not supported by the evidence and it was made with conscious and deliberate intent to do an injustice. b. It must be shown that, although he acted without malice, he failed to observe in the performance of his duty that diligence, prudence and care which the law requires. Negligence and ignorance are inexcusable if they imply manifest injustice which cannot be explained by a reasonable interpretation.

3. Liability for gross ignorance of law and incompetence – a judge may be penalized by suspension when there is gross misjudgment or gross ignorance of the law. Judges must keep themselves posted in the latest law and jurisprudence. To warrant a finding of gross ignorance of law, the order or decision must be contrary to existing law and jurisprudence and the error must be so gross and patent as to produce an inference of ignorance or bad faith or that the judge knowingly rendered an unjust decision. 4. Quantum of proof necessary to support administrative charges – substantial evidence is necessary. Liability of quasi-judicial officers for official acts. 1. Reasons for immunity – same reasons for immunity of members of the judiciary 2. Liability for ministerial acts – if it be judicial or quasi-judicial in nature, the officer is exempt. But when the quasi-judicial officer acts ministerially he is liable for carelessness or negligence. Liability of ministerial officers for official acts. 1. General rule – where the law imposes upon a public officer the performance of ministerial duties in which a private individual has a special and direct interest, the officer will be liable to such individual for any injury which he may sustain as a result of the failure or neglect of the officer to perform the duty at all or perform it properly. The officer is also liable for nonfeasance, misfeasance and malfeasance. 2. Requisites for liability – plaintiff must show that these concur: 1) that he has sustained a special and peculiar injury; 2) that it results from a breach of duty which the officer owed to him The ministerial officer who performs in the prescribed manner and with due care and diligence an act imposed upon him by law incurs no liability to any individual however much the latter may be injured.


Kinds of liability of ministerial officers. 1. Nonfeasance – the neglect or refusal, without sufficient excuse, to perform an act which is the officer’s legal duty to the individual to perform 2. Misfeasance – the failure to use, in the performance of a duty, that degree of care, skill and diligence 3. Malfeasance – the doing, through ignorance, inattention or malice, of that which the officer has no legal right to do (e.g. the officer acts without any authority or exceeds, ignores or abuses his powers) Good faith and absence of malice constitute no defense in an action to hold a ministerial officer liable for damages caused by his nonfeasance or misfeasance. Liability of superior officer for acts of subordinates. 1. General rule: public officers of the government, in the performance of their public functions, are not civilly liable to 3

rd persons. The negligence of subordinates cannot

always be ascribed to their superior in the absence of the latter’s own negligence. 2. Exceptions:

a. Where the superior negligently or wilfully employs or retains unfit or improper persons b. Where he negligently or wilfully fails to require subordinates the due conformity to the prescribed regulations c. Where he carelessly or negligently oversees, conducts or carries on the business of his office as to furnish the opportunity for default d. Where he has directed, authorized or cooperated in the wrong e. Where liability is expressly provided in the statute f. A superior is liable for the misconduct or negligence within the scope of the employment of those employed by or under him voluntarily or privately and paid by or responsible to him g. Where there is a clear showing of bad faith, malice or gross negligence or for neglect to perform a duty within a period fixed by law or regulation or within a reasonable period h. Where he has actually authorized by written order the specific act or omission complained of

Liability of subordinates.

1. Same rules as those applicable to officers of higher rank – in general, rules applicable to officers of higher rank for official misconduct are the same as those

governing subordinate officers. 2. Where acts done pursuant to orders or instructions of a superior – a subordinate official who acts in good faith under orders or instructions of a superior officer acting in pursuance to law, even if it is later held unconstitutional, is not personally liable in an action for damages. But an order of a superior is, in general, no justification for an unlawful act on the part of a subordinate officer. A subordinate officer or employee shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy or good customs, even if he acted under orders or instructions by his superiors. However, where a ministerial officer is vested with no discretion and the law places on him the imperative duty of obeying the orders of a superior, he is protected by the command of his superior from liability. Liability for tortious acts. 1. Acts done within scope of official authority – a public officer is generally not personally liable to one injured as a result of an act performed within the scope of official authority and in line of official duty. 2. Acts done without or in excess of official authority – officers and employees of a state are not immune from suit for their own tortious conduct, even where such conduct is committed in the course of their employment. If a public officer exceeds the power conferred on him by law, he cannot shelter himself by the plea that he is a public agent acting under color of his office. A public official is not liable for damages for performing a duty required by law and absent bad faith. (Mabutol v. Pascual) An officer who acts outside the scope of his jurisdiction and without authorization of law may be amenable to personal liability in a civil suit. (Festejo v. Fernando) Liability under the Civil Code. 1. For failure or neglect to perform official duty – Art. 27: “Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter without prejudice to any disciplinary administrative action that may be taken.” 2. For violating rights and liberties of private individuals – Art. 32: “Any public officer or employee who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the rights and liberties” provided under the Bill of Rights “of another person shall be liable to the latter for damages.” (e.g. freedom of religion, of speech, of suffrage, liberty of abode, right to the equal protection of the laws) To be liable under Art. 32, it is not required that the defendant should have acted with malice or bad faith.


3. For failure to render aid or protection to a person – Art. 34: When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. Refusal of the fiscal/prosecutor to prosecute when after an investigation he finds no sufficient evidence to establish a prima facie case is not a refusal to perform an official duty. (Zulueta v. Nicolas) Note: The duty of a prosecutor to investigate is ministerial while the duty to file a complaint is discretionary. Liability on contracts executed in behalf of the government. General Rule: A public officer acting within the scope of his authority and in his official capacity is not personally liable on contracts executed in behalf of the government. Exception: A public officer becomes personally liable on such contracts when: 1) the officer intended to render himself personally liable; 2) when he makes no mention of the public agency he serves; or 3) when he does not indicate that it is executed in an official capacity. Liability for unexplained wealth. 1. RA 1379 (Forfeiture of Unexplained Wealth Act) declares the forfeiture in favor of the State of any property found to have been unlawfully acquired by any public official or employee. Under the Act “whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired.” The Act creates a presumption against the public officer or employee, who acquires property grossly disproportionate to his income, that the property was unlawfully acquired. The presumption, once established, may be rebutted by the public officer or employee by showing to the court’s satisfaction that his acquisition of the property was lawful. The burden of proof is on the respondent to establish by clear and convincing evidence that the property in question was lawfully acquired to overcome the presumption of illegitimacy. Failing this, the court shall declare the questioned property forfeited in favor of the state. The courts are not bound by the SALN filed by the public officer or employee. The accuracy of entries in the SALN becomes material in criminal or administrative proceedings of violation of the Anti-Graft and Corrupt Practices Act. Forfeiture proceedings are actions in rem and civil in nature. A full-blown trial is not required under the Act. A proceeding under the Act terminates in the forfeiture of properties illegally acquired in favor of the State. The procedure outline in the law leading to forfeiture is that

provided for in a civil action. Thus, amendment of the charges or the petition for forfeiture may be made before trial or in the course of trial without need of another investigation. It follows that amendments setting forth newly discovered acquisitions may be inserted in the petition without obtaining the consent of respondents. (Almeda v. Perez) 2. RA 3019 (Anti-Graft and Corrupt Practices Act) penalizes certain acts of public officers and private persons which constitute graft or corrupt practices or which may lead thereto. The Act requires every public officer to file a “true, detailed and sworn SALN, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income tax paid for the next preceding calendar year.” It provides that “if in accordance with the provisions of RA 1379, a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or removal. Properties in the name of the spouse and unmarried children of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown. Bank deposits shall be taken into consideration in the enforcement of this notwithstanding any provision of law to the contrary.” Notes in class: 1. The ombudsman can investigate such cases anytime but has to wait until the end of the pending proceedings before he files a case against the said official. 2. Freezing of assets can be done ex parte but once you look into the bank accounts, there should be a hearing. 3. A forfeiture case becomes criminal when there’s a transfer of property to another person. 4. If the charge is plunder, it is very hard to prove because there are 2 tiers – there’s a predicate crime and then money laundering. Liability of accountable officers to the government. 1. Bond requirement – every officer of any government agency whose duties permit or require the possession or custody of government funds or property shall be properly bonded in accordance with law. 2. Primary and secondary responsibility – the head of any agency of the government is immediately and primarily responsible for all government funds and property pertaining to his agency. Persons entrusted with the possession/custody of the funds or property under the agency head shall be immediately responsible to the agency head, without prejudice


to the liability of either party to the government. 3. General liability for unlawful expenditures – expenditures or uses of government funds or property in violation of law or regulations is a personal liability of the official or employee directly responsible therefor. 4. Measure of liability of accountable officers – every officer accountable for governmental property is liable for its money value in case of improper or unauthorized use or misapplication by himself or any person for whose acts he may be responsible for. Also, he is liable for all losses, damages or deterioration due to negligence in the keeping or use of the property. Every officer accountable for government funds is liable for all losses due to unlawful deposit, use, application or negligence in keeping of the funds. 5. Liability for acts done by direction of superior officer – every accountable officer is personally liable by reason of his having acted under the direction of a superior officer in paying out, applying or disposing of the funds or property over which he is chargeable. If he notified the superior officer in writing of the illegality of payment, application or disposition, he does not become personally liable. The superior officer directing any illegal payment, application or disposition is primarily liable for the loss. The accountable officer who fails to serve the required notice is secondarily liable. The mere fact that a public officer is the head of an agency does not necessarily mean that he is the party ultimately liable in case of questionable transactions in his agency. His knowledge of the illegality of the transaction and his active and knowing participation must be proved. An official or employee shall be personally liable for unauthorized expenditures if the following requisites are present: 1) there is an expenditure or use of government funds or property; 2) it is in violation of law or regulation; 3) the official is found directly responsible for it. (Albert v. Gangan)

C. Criminal Liability Generally. No officer is above the law and all may be punished for criminal acts. Acting in official capacity will not relieve him from criminal liability. However, public officers can be exempted by statues from certain crimes. Public officers may not be held criminally liable for failure to perform a duty when performance is impossible due to causes beyond their control. But absence of corrupt intent is no defense to an action against an officer for a statutory penalty for misconduct. Mere expiration of his term will not prevent the prosecution and punishment of a public officer for a crime committed in office; nor does re-election extinguish criminal liability incurred by him during a previous term. Crimes peculiar to certain public officers.

1. Revised Penal Code – crimes committed by public officers are classified as:

a. Malfeasance and misfeasance in office b. Frauds and illegal exactions and transactions c. Malversation of public funds or property d. Infidelity of public officers (putting one’s interest ahead of the interest of the State) e. Other offenses and irregularities committed by public officers

2. Anti-Graft and Corrupt Practices Act – penalty for violations in Section 3 of RA 3019 is imprisonment for not less than 1 year nor more than 10 years, perpetual disqualification from public office, and confiscation or forfeiture of any prohibited interest or unexplained wealth. 3. Code of Conduct and Ethical Standards

a. Any public official or employee committing any violation of this Act shall be punished with a fine not exceeding the equivalent of 6 months salary or suspension not exceeding 1 year or removal depending on gravity of offense after due notice and hearing. If the violation is punishable by a heavier penalty under another law, he shall be prosecuted under the latter one. Violations of sections on prohibited acts, SALN and financial disclosure and divestment are punishable with imprisonment not exceeding 5 years or a fine not exceeding 5,000 or both and disqualification to hold public office. b. Any violation proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of the official or employee, even if no criminal prosecution is instituted against him. c. Private individuals who participated in conspiracy with public officials or employees shall be subject to the same penal liabilities as the public officials and shall be tried jointly with them.

4. Forfeiture of Unexplained Wealth Act – punishes with imprisonment not exceeding 5 years or fine not exceeding 10,000 or both any public officer or employee who shall transfer/convey unlawfully acquired property. 5. Civil Service Decree – penalty is a fine not exceeding 1,000 or imprisonment not exceeding 6 months or both when public officer makes appointments in violation of the provisions of the decree, commits fraud, deceit, intentional misrepresentation of material facts concerning other civil matters, refuses or neglects to comply with any such provision or rules. 6. Government Auditing Code – penalty is a fine not exceeding 1,000 or imprisonment


not exceeding 6 months or both for violations of certain sections. 7. Local Government Code – penalty is imprisonment of 6 months and 1 day to 6 years or fine of 3,000 to 10,000 or both when there is a violation of Section 89 (refer to Chapter 6B). 8. NIRC – punishes:

a. Every official or employee charged with the enforcement of the Code guilty of extortion or willful oppression through the use of his office, knowingly demanding or receiving unauthorized payment, willful neglect to give receipts, etc. – penalty of fine of 50,000 to 100,000 and imprisonment for 10 to 15 years, plus perpetual disqualification to hold public office, vote, participate in public election b. Unlawful divulgence of trade secrets or confidential information known to any officer or employee of the BIR in official capacity – penalty of fine of 5,000 to 18,000 or imprisonment for 6 months to 5 years or both c. Having unlawful interest in business - penalty of fine of 5,000 to 10,000 or imprisonment for 2 years and 1 day to 4 years or both d. Violation of withholding tax – penalty of fine of 5,000 to 50,000 or imprisonment for 6 months and 1 day to 2 years or both

9. Omnibus Election Code – election offenses committed by public officers are punishable under this Code. Notes in class: 1. General Rule: There is a right to information. Exception: Executive privilege

Exception to exception: Executive privilege cannot be used to conceal a crime. 2. Difference between RA 6713 and RA 3019 version of infidelity of public officers


Chapter Eight TERMINATION OF OFFICIAL RELATIONS

A. Specifically

Modes of termination of official relations. Legal modes: Natural Causes 1. Expiration of term or tenure of office; 2. Reaching age limit (retirement); 3. Death or permanent disability; 4. Resignation; Acts or Neglect of Officer 5. Acceptance of an incompatible office; 6. Abandonment of office; 7. Prescription of right to office; Acts of the Government or People 8. Removal; 9. Impeachment; 10. Abolition of office; 11. Conviction of a crime; 12. Recall. (13. Revolution) A single act may be against two or more provisions of law and may give rise to criminal as well as civil and administrative liability. Hence, absolution from criminal charge does not a bar administrative prosecution or vice versa.

B. Natural Causes By expiration of term or office. Term– is the fixed and definite time prescribed by law by which an officer may hold an office. Upon expiration of term, an officer’s rights, duties and authority ipso facto ceases unless he is authorized by law to hold over. It is then the right of the occupant himself to hold the office that is terminated. Removal and expiration of term distinguished. To remove an officer – is to oust him from office before the expiration of term. 1. It is expiration of term not removal where law does not fix term of office and the appointing authority relives the incumbent, its legal effect is as if there’s a term is fixed.

2. It is expiration of term not dismissal where an appointment (for a definite and renewable period) is not renewed. Term and tenure distinguished.

Term of office Tenure

Time during which officer may claim to hold the office as of right; fixes interval of succession Fixes interval of succession Fixed period of time to hold office Not affected by holding-over of incumbent after expiration of term

Period during which incumbent actually holds office.

Commencement of Terms of office. The law creating a public office usually prescribes the limits of the terms. 1. The date for the commencement of the term is fixed after the election or appointment. 2. Where no time is fixed, the term begins on date of the election. For appointed officers, at the date of appointment. 3. Where the term “runs from a certain date,” the day of the date is excluded in the computation. Power of Congress to fix, shorter, or lengthen term. 1. where term fixed by the Constitution – it is beyond the power of Congress to affect the tenure of constitutional office. However, the term can be shortened or extended by the vote of the people ratifying a constitutional amendment but intention to change the term must be clearly disclosed. 2. where term not fixed by the constitution – Congress may fix the term of an office.

Congress may give to terms of office for a fixed or indefinite tenure, even for life.

Where the term is prescribed by law, public policy forbids the beginning and expiration of terms be left to the discretion of person holding the office, or the body having the appointing power.

When Congress creates the office, it has the power to modify the term. It can also change the tenure of the officers holding offices that it created.

Budgetary authority has no power to shorten a term of office fixed by the legislative act by refusing to appropriate funds.


Holding over after the expiration of term. Hold over status – the officer’s term has expired or his services terminated but he continues holding his office until his successor is appointed or chosen had qualified. 1. Where holding over provided by law – An officer elected or appointed for a fixed term shall hold not only for that term but until his successor are elected and qualified. Hence, an office does not become vacant if there is no qualified successor. 2. Where holding over not provided by law – The prevailing opinion is that the incumbent may continue to hold office unless expressly or impliedly prohibited. 3. Where Constitution limits term – When the term is provided but there is no provision to continue office after the expiration of his term then holding over is not permitted. 4. Application of hold over – It only applies where a fixed term is annexed to an office. It may be made applicable to both elective and appointive officers but it can be restricted. In determining whether a hold-over provision applies to a particular public officer – the court would be guided by statutory construction unless there are compelling indications that the provision is clearly wrong. It is not applicable where the term is for an indefinite duration. 5. Purpose of hold-over provision – It is to prevent a hiatus in the government until a successor may be chosen as public interest requires that public offices should be filled at all times, without interruption. 6. Status – He is a de jure officer when authorized by law if not he is a de facto officer. Officer created for the accomplishment of a specific act. Upon accomplishment of the purpose of the single act the officer’s authority ceases. The termination of the official relationship is equivalent to the expiration of the term. Illustration: Board of canvassers – upon proclamation of the candidates they do not have the authority to re-canvass the returns nor they can be compelled to do so by mandamus. By reaching of age limit. Results in compulsory and automatic retirement of a public officer. Age of Retirement for members of the SC and judges of lower court: 70 years old Public Officers and employees: 65 years old Note: Retirement of a judge does not render the admin case against as moot and academic.

Death or permanent disability. 1. Death of incumbent renders the office vacant. Upon his death, the public official ceases to hold office, and all rights, duties, obligations are extinguished. However, if the authority is conferred over two or more officers, death of one terminates his authority and leaves a vacancy but the entire office is not vacant. Unless the joint action of all is expressly required, the survivors may execute the office. 2. Permanent disability covers either mental or physical disability. When degree of incapacity is at issue (i.e. when the appointee refuses to give up the position) the appointing power will have to make the decision whether the condition of the public official has created a vacancy but a judicial determination of the fact is necessary to render it conclusive.

C. Acts or Neglect of Officer By resignation. 1. The office-holder may resign or retire at any time he chooses (Prohibition against involuntary servitude) 2. However, after an office is conferred and assumed, it cannot be laid down without the consent of the appointing power 3. Resignation should not be used either as an escape nor as an easy out to evade administrative sanction Meaning of resignation. Resignation – The formal renunciation or relinquishment of a public office. It implies an expression by the incumbent, either express or implied, of the intention to surrender, renounce, and relinquish his right to the office and its acceptance by competent and lawful authority. Form of resignation. 1. Where by law a resignation is required to be made in any particular form, that form must be substantially complied with

2. Where no such form is prescribed, no particular mode is required, but resignation may be made by any method indicative of the purpose What constitutes resignation. To constitute resignation of public office, there must be: 1. An intention to relinquish a part of the term 2. Accompanied by the act of relinquishment, and 3. An Acceptance by the proper authority


To whom resignation tendered.

May be designated by statute

In the absence of a statutory direction, a public officer should tender his resignation to the officer or body having authority to appoint his successor or to call an election to fill the office

A resignation tendered to an improper person or body is a nullity

Necessity of acceptance of resignation. 1. Abandonment unlawful before acceptance

a. Any public officer who, before the acceptance of his resignation, shall abandon his office to the detriment of the public service shall suffer the penalty of arresto mayor b. A resignation is inoperative and ineffective in the absence of acceptance

2. Resignation revocable before acceptance

a. Without acceptance by the proper authority the tender or offer to resign is revocable unless otherwise provided b. The resignation is not complete and the officer remains in office c. The acts of an officer before the official notification of acceptance of his resignation are de facto

Form of acceptance. 1. Express (formal declaration) 2. Implied (appointment of a successor) Withdrawal of resignation. An immediately effective resignation may be withdrawn before it is acted upon, but not after acceptance A public employee is entitled to withdraw a prospective resignation if the employee does so before: 1. Its effective date 2. It has been accepted 3. The appointing power acts in reliance on the resignation Repudiation of resignation. Resignation may be repudiated in the following instances: 1. It has been transmitted without the officer’s consent 2. It has been procured by fraud or duress 3. It is not given voluntarily and willingly

Effect of duress or fraud. Fraud or duress makes the resignation voidable and may be repudiated Note: It is not duress to threaten to do what one has the legal right to do, or to threaten to take any measure authorized by law and the circumstances of the case Duress or fraud must be proven because when an employee resigns from government service, there is a presumption of voluntariness By acceptance of an incompatible or prohibited office. 1. It is contrary to the policy of the law that the same individual should undertake to perform inconsistent and incompatible duties. An officer who, while occupying one office, accepts another incompatible with the first, ipso facto, absolutely vacates the first office His title is thereby terminated without any other act or proceeding

2. If the law or Constitution forbids the acceptance of any other office other than that which he holds, it is not a case of incompatibility but of prohibition

a. If the appointment to the latter office is void because of disqualification or ineligibility, the appointee does not forfeit his original office b. The law or Constitution may allow the holding of another office resulting in the forfeiture of the first office

When offices incompatible with each other. Incompatibility is found in the character of the offices and their relation to one another. It exists where: 1. There is conflict of duties and functions 2. One is subordinate to the other and is subject to its supervisory power 3. The law declares incompatibility even though there is not inconsistency in the nature and functions of the offices Exceptions to rule on holding incompatible offices. 1. Where the officer cannot vacate the first office by his own act 2. Where the first office is held under a different government from that which conferred the second 3. Where the officer is expressly authorized by law to accept another office 4. Where the second office is temporary


By abandonment of office. 1. A public office may become vacant ipso facto by non-user or acquiescence 2. A statute may declare that the mere filing of a certificate of candidacy for a second office by the holder of one office operates as an abandonment 3. Abandoment may also result from the intentional and completed relinquishment of any claim to the office. Note: When an office is once abandoned, the former incumbent cannot legally repossess it Meaning of abandonment. Abandonment – The voluntary relinquishment of an office by the holder of all right, title or claim thereto without valid or justifiable reason with the intention of not reclaiming it, or terminating his possession and control thereof Note: There can be no abandonment without the intent to abandon When there is abandonment of office. 1. Clear intention to abandon office

a. Abandonment must be total and absolute, and clearly indicate an absolute relinquishment of office b. Two essential elements of abandonment:

i. Intention to abandon ii. An over or “external” act by which the intention is carried into effect

2. Acceptance of another office

a. There must be deliberation and freedom of choice, either to keep the old office or renounce it for another b. Acceptance of temporary appointment may show lack of intention to abandon

3. Concurrence of overt acts and intention Temporary absence is not sufficient. There must be concurrence of the intention to abandon and some overt acts from which it may be inferred that the officer has not more interest. 4. Failure to discharge duties of office, or to claim or resume it

a. Under normal conditions, failure to discharge the duties of an office over any particular period of time, or to claim or resume it after a period in which

performance of its functions became impossible, constitutes an abandonment or voluntary relinquishment of the office b. Non-performance of the duties of an office does not constitute abandonment where such nonperformance results from temporary disability or from involuntary failure to perform

5. Acquiescence by the officer

a. Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge b. When an officer vacates his office due to an unconstitutional statute, his surrender will not be deemed an abandonment and the officer may recover the office

Abandonment and resignation distinguished. Resignation and abandonment are incompatible and contradictory.

Abandonment Resignation

Voluntary Voluntary

Relinquishment through non-user Formal relinquishment

Implies non-user but non-user does not itself imply abandonment

Not a requisite of abandonment

Failure to perform duties must be with active or imputed intention on the part of the officer to relinquish office. Instances of abandonment. See pg. 382-384 in De Leon, 2011. Acts not constituting abandonment. See pg. 384-386 in De Leon, 2011. By prescription of right to office. A person who claims a right to a public office occupied by another may bring an action to determine by what authority the latter assumes to hold and exercise the office in question and ascertain who is entitled to it 1. Prescriptive period for filing petition for quo warranto Should be commenced within one (1) year after the cause of such ouster or the right of the plaintiff to hold such office or position arose 2. Rationale for the one-year period

a. Title to public office should not be subjected to uncertainties but should be


determined as speedily as possible b. The period runs even when there is no person as yet appointed to succeed in the position and even during the pendency of a motion for reconsideration in the administrative level

3. Non-application of prescriptive period Exception circumstances attending, however, may justify the non-application of the prescriptive period in order to grant relief that will serve the ends of justice

D. Acts of the Government or the People

By removal. Offices may also become vacant by the removal or dismissal of the incumbent from the service. It may be arbitrary or for cause. Meaning of removal. Removal – The ouster of an incumbent before the expiration of his term

Implies that the office exists after the ouster

Another term used is dismissal What constitutes removal. A removal from office may be expressed or implied 1. Appointment of another officer The general rule is that where an officer may be removed by a superior officer at the latter’s pleasure, the act of removal is accomplished merely by the appointment of another officer in his place, so far as the officer himself is concerned, but in order to render the removal effective in all cases, the incumbent must be notified

2. Transfer to another office

a. The transfer of an officer or employee without his consent from one office to another, whether it results in promotion or demotion, advancement or reduction in salary, is equivalent to his illegal removal or separation from the first office b. A temporary transfer or assignment of personnel is permissible even without the employee’s prior consent

i. However, it cannot be done when the transfer is a preliminary step toward his removal, or is a scheme to lure him away from his permanent position, or designed to indirectly terminate his service, or force his resignation ii. An employee cannot be transferred unless for causes provided for by law and after due process

c. Appointments may be allowed to positions without specification of any particular office or station

3. Demotion – Movement from one position to another involving the issuance of an appointment with diminution in duties, responsibilities, status or rank which may or may not involve reduction in salary

a. Demotion is equivalent to removal if no cause is shown for it b. Requires the issuance of an appointment

4. Reassignment – The movement of an employee from organization unit to another in the department or agency which does not involve a reduction in rank, status, or salary

a. A reassignment in good faith and in the interest of the service is permissible and valid even with(out) the employee’s prior consent b. Does not require the issuance of an appointment

5. Constructive removal or dismissal – defined as a quitting because continued employment is rendered impossible, unreasonable or unlikely, when there is demotion in rank or of pay It exists when an act of clear discrimination, insensibility or disdain by an employer (or superior) becomes unbearable to the employee, leaving him with no option but to forego his continued employment Legislative regulation of removal. 1. Where office created by statute – Ordinarily, where an office is created by statute, it is wholly within the power of Congress, and its legislative power extends to the subject of regulating removals from the office.

2. Where Constitution prescribes method of and cause for removal – The method and grounds established are exclusive, and it is beyond the power of Congress to remove incumbents in any other manner, or for any other cause. Removal as incident of right of appointment. The power to remove is deemed lodged in the same body or person in which the power to appoint is vested 1. Where term of office not fixed by law

a. The general rule is that the power of removal is incident to the power to appoint b. There is no removal involved but extinguishment of the right of an officer to hold office by expiration of his term

2. Where term of office fixed by law


An individual appointed to a post for a fixed term may be removed prior to the term’s expiration only for cause

3. Where holding of position at pleasure of appointing power or subject to some supervening event

a. If the statute does not designate the term of the office, the appointee will hold only during the pleasure of the appointing power, and may be removed at pleasure at any time without notice or hearing b. Where a person holds his position at the pleasure of a superior or subject to some supervening event, his separation from office is not removal but the expiration of his term

Exercise of the power of removal. The power of removal when conferred may be absolute or conditional 1. Absolute – The power is vested with the unlimited discretion of the removing officer to exercise at such time and for such reasons as he may deem proper and sufficient 2. Conditional – The time, manner, or reason for removal is placed beyond the mere discretion of the removing officer Power of removal of the President. The power of removal of the President is possessed by him, as it is implied from: 1. Power to appoint 2. The power to remove is executive in nature 3. Duty to execute the laws 4. Control of all departments, bureaus and offices 5. “No officer or employee in the Civil Service shall be removed or suspended except for cause provided by law A presidential appointee who belongs to the career service of the Civil Service comes under the direct disciplining authority of the President Extent of the President’s power of removal. 1. non-career officers exercising purely executive functions whose tenure not fixed by law – removal with or without cause, Congress may not restrict power

2. quasi-legislative or quasi-judicial functions – removed only on grounds provided by law 3. constitutional officers removable by impeachment – not subject to power of removal by the President 4. civil service officers – only for cause

5. temporary, provisional or acting appointments – remove at pleasure, with or without cause 6. offices created by law, “at pleasure of the President” – not a removal but expiration of term. But where it is authorized that removal be at pleasure, removal may only be for cause 7. appointments based on merit and fitness – tenure co-terminous with appointing authority, or subject to his pleasure 8. Local elective officals – see infra Civil service officers and employees entitled to security of tenure. Security of tenure – An officer or employee in the Civil Service shall not be suspended or dismissed except for cause as provided by law and only after due process is accorded 1. Ground for suspension or removal – Removal or suspension shall be “for cause provided by law.”

2. Substantive aspect

a. It means for reasons which the law and sound public policy recognize as sufficient ground for removal or suspension or demotion and after due process is accorded the officer or employee b. Such cause must relate to and affect (as a general rule) the functions or administration of the office or be connected with the performance of his official duties and must be restricted to something of a substantial nature directly affecting the rights and interests of the public c. The guarantee of security of tenure is meant to prevent capricious exercise of the power to dismiss, not a guarantee of perpetual employment

3. Procedural aspect – The guarantee of procedural due process requires notice and opportunity to be heard before one is suspended or dismissed

a. Complaints must be in writing and subscribed and sworn to by the complainant b. A decision rendered without due process is void ab initio and may be attacked directly or collaterally

Guarantee extends to both those in career and non-career positions. All permanent officers and employees in the Civil Service, regarless of their status, whether career or non-career, are entitled to the constitutional and statutory guarantee of security of tenure


Grounds for removal or suspension under the Constitution. 1. Members of Congress – each House may punish its members for disorderly behavior

a. With the concurrence of 2/3 of all its members, the House may suspend or expel a member b. A penalty of suspension shall not exceed 60 days

2. (Impeachable officers) The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman

a. Culpable violation of the Constitution b. Treason c. Bribery d. Graft and corruption e. Other high crimes f. Betrayal of public trust

3. Members of the judiciary

a. They shall hold office during good behavior until they reach the age of seventy (70) years or become incapacitated to discharge the duties of their office b. With reference to members of the Supreme Court, it implies that they have no committed any of the offenses which are grounds for impeachment c. As regards judges of lower courts, the determination by the Supreme Court is conclusive since it alone has the power to order their dismissal

4. Civil Service officers or employees – can only be removed or suspended for “cause provided by law” Termination of temporary appointments. An appointment which is temporary in nature can be terminated at pleasure of the appointing power, without notice, and regardless of grounds or reasons 1. Appointee without requisite qualifications A person who does not have the requisite qualifications for a position cannot be appointed to it or, only as an exemption to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles

2. Former incumbent illegally removed or suspended When an incumbent is illegally removed or suspended, legally speaking, his position never becomes vacant; hence there is no vacancy to which another could be permanently appointed

In other words, the occupancy or incumbency of any one so appointed to the said post is temporary

3. Term of appointment for a definite period fixed by law

a. Temporary appointments can only be removed for a just cause b. “the mantle of protection against arbitrary dismissals is accorded to an employee even if he is non-eligible and holds a temporary appointment.”

Grounds for disciplinary action under the Local Government Code. 1. Disloyalty to the Republic of the Philippines 2. Culpable violation of the Constitution 3. Dishonesty, oppression, misconduct in office and neglect of duty 4. Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor 5. Abuse of authority 6. Unauthorized absence for fifteen (15) consecutive working days except in the case of members of the sangguniang panlalawigan, sangguniang panglunsod, sangguniang bayan, and sangguniang barangay 7. Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country 8. Such other grounds as may be provided by law An elective local official may be removed from office on the grounds enumerated above by order of the proper court Grounds for disciplinary action under the Civil Service Law. 1. Dishonesty 2. Oppression 3. Neglect of duty 4. Misconduct 5. Disgraceful and immoral conduct 6. Being notoriously undersirable 7. Discourtesy in the course of official duties 8. Inefficiency and incompetence in the performance of official duties 9. Receiving for personal use a fee, gift or other valuable thing in the course of official duties or in connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons, or committing acts punishable under the anti-graft laws


10. Conviction of a crime involving moral turpitude 11. Improper or unauthorized solicitation of contribution from subordinate employees and by teachers of school officals from school children 12. Violation of existing Civil Service Law and rules or reasonable office regulations 13. Falsification of official documents 14. Frequent unauthorized absences or tardiness in reporting for duty, loafing or frequent unauthorized absences from duty during regular office hours 15. Habitual drunkenness 16. Gambling prohibited by law 17. Refusal to perform official duty or render overtime service 18. Disgraceful, immoral or dishonest conduct prior to entering the service 19. Physical or mental incapacity or disability due to immoral or vicious habits 20. Borrowing money by superior officers from subordinates or lending by subordinates to superior officers 21. Lending money at usurious rates of interest 22. Willful failure to pay just debts or willful failure to pay taxes due the government 23. Contracting loans of money or other property from persons with whom the office of the employee concerned has business relations 24. Pursuit of private business, vocation or profession without the permission required by the Civil Service rules and regulations 25. Insubordination 26. Engaging, directly or indirectly, in partisan political activities by one holding non-political office 27. Conduct prejudicial to the best interest of the service 28. Lobbying for personal interest or gain in legislative halls and offices without authority 29. Promoting the sale of tickets in behalf of private enterprises that are not intended for charitable or public welfare purposes and even in the latter cases if there is no prior authority 30. Nepotism

Except when initiated by the disciplining authority, no complaint against a Civil Service official or employee shall be given due course unless the same is in writing and subscribed and sworn to by the complainant Misconduct in office. Misconduct of a public officer or employee – A transgression of some established and definite rule of action more particularly, unlawful behavior or gross negligence by the public officer

Improper and wrong conduct

Implies wrongful intent and not mere error of judgment

Corrupt, or inspired by an intention to violate the law or a persistent disregard of well-known legal rules

Misconduct in office – One that affects the officer’s performance of his duties as an officer and not only as affects his character as a private individual 1. Related to, and connected with, performance of official duties – To warrant removal from office of an officer or employee, the misconduct, misfeasance, or malfeasance must (as a general rule) have a direct relation to and be connected with the performance of official duties, amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of the office. An offense is deemed to be committed in relation to the accused’s office when the offense cannot exist without the office

2. Committed during a prior term – An elected public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation by the people of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor Removal cannot extend beyond the term during which the alleged misconduct was committed

3. Not work related or committed in the course of performance of duty

a. The causes which warrant the dismissal of a civil servant need not necessarily be work-related or committed in the course of the performance of duty by the person charged b. When an officer or employee is disciplined, the object sought is not the punishment of such officer or employee but the improvement of the public service and the preservation of the public’s faith and confidence in the government

4. Proved by substantial evidence – The quantum of proof required is only substantial evidence. Substantial evidence – such relevant evidence as a reasonable mind might accept as adequate to support a conclusion


5. Conduct unbecoming of a police officer – Unbecoming conduct is equivalent to improper performance. Such term applies to a broader range of transgressions of rules not only of social behavior but of ethical practice or logical procedure or prescribed method. Nepotism. 1. Situations covered – The Civil Service Decree prohibits all appointments in the national and local governments or any branch or instrumentality thereof, including GOCCs, made in favor of a relative of the:

a. Appointing authority b. Recommending authority c. Chief of the bureau or office d. Person exercising immediate supervision over the appointee

Note: The word “relative” and members of the family referred to are those related within the third degree either of consanguinity or of affinity. 2. Persons not covered

a. Persons employed in a confidential capacity b. Teachers c. Physicians d. Members of the Armed Forces of the Philippines

Note: in each particular instance, full report of such appointment must be made to the Civil Service Commission 3. Designation included in prohibition

a. The prohibition includes designation because what cannot be done directly cannot be done indirectly b. It covers all kinds of appointments be they original, promotional, transfer or reemployment regardless of status

4. Purpose of prohibition

a. To ensure that all appointments and other personnel actions in the civil service should be based on merit and fitness and should never depend on how close or intimate and appointee is to the appointing power b. To take out of the discretion of said authority the matter of appointing or recommending for appointment a relative

Grounds for disciplinary action under the Code of Conduct and Ethical Standards. Section 4 of the Code commands that “public officials and employees x x x at all times respect the rights of others, and x x x refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest.” For specific grounds, see pg. 419-423 in De Leon, 2011. (More or less the same as grounds for administrative disciplinary actions) Administrative investigation of elective local officals. (This is all codal/procedural stuff – check pg. 423-432, De Leon 2011 for details 1. Form and filing of administrative complaints – should be verified and in writing 2. Notice of hearing

a. Within 7 days after the complaint is filed, the respondent has 15 days from receipt to file his answer b. The investigation shall commence within 10 days after receipt of the answer

3. Preventive suspension

a. Shall not extend beyond 60 days b. Cannot be suspended for more than 90 days within a single year on the same ground or grounds existing and known at the time of the first suspension c. Upon expiration of the preventive suspension, the official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within 120 days from notice

4. Salary of the respondent pending suspension – no salary during suspension Upon exoneration and reinstatement, the officer is entitled to emoluments accruing during his suspension

5. Rights of respondent

a. Full opportunity to appear and defend himself b. Confront and cross-examine witnesses c. Require the attendance of witnesses and the production of evidence in his favor

6. Form and notice of decision

a. Investigation shall terminate within 90 days from the start


b. Within 30 days after the end of the investigation a decision shall be rendered stating clearly the facts and reasons for such decision c. Penalty of suspension shall not exceed 6 months d.Removal from office shall be considered a bar to the candidacy of the respondent for any elective position

7. Administrative appeals

a. Appeals must be perfected within 30 days from receipt of judgment b. Appealable to either the sangguniang panlalawigan or the Office of the President

8. Execution pending appeal – an appeal shall not prevent a decision from becoming final or executory Administrative Order No. 23 prescribes the rules and procedures applicable to administrative disciplinary cases filed against elective local officials 1. How initiated

a. May be initiated by a private individual or government officer by filing a sworn written complaint b. May also be initiated motu proprio by the Office of the President or a government agency

2. Where complaint filed

a. Records Office, Office of the President, Malañang, Manila b. Regional Director of the DILG, who shall transmit the same to the Secretary of the Interior and Local Government, within 48 hours from receipt. The Secretary of the Interior and Local Government shall then transmit the same to the Office of the President within 48 hours from receipt.

3. Notice – Within 7 days after the complaint is filed, the respondent shall be ordered to submit his answer within 15 days from receipt of the order.

4. Where answer filed – same as complaint. See no. 2 above

5. Commencement of preliminary investigation – Investigating authority shall commence investigation with 10 days from receipt of the complaint.

6. Evaluation – Investigating authority will determine whether there is a prima facie case within 20 days fro receipt of the complaint.

7. Dismissal motu proprio – If there is no prima facie case, dismissal will be recommended to the disciplining authority.

8. 90-day ban – No preliminary investigation shall be imposed within 90 days immediately prior to any local election.

9. Power to suspend – Preventive suspension may be imposed by the Disciplining Authority. 90-day ban – No preventive suspension shall be imposed within 90 days immediately prior to any local election.

10. Grounds – Where evidence of guilt is strong and there is great probability that the continuance in office could influence witnesses or pose a threat to the safety and integrity of the records and other evidence.

11. Duration – Preventive suspension shall not exceed 60 days; 90 days in the case of several administrative cases.

12. Automatic reinstatement – Upon expiration of the preventive suspension, the official shall be deemed reinstated without prejudice to the continuation of the proceeding against him, which shall be terminated within 120 days from the time of notice.

13. Salary of respondent pending suspension – no salary during suspension Upon exoneration and reinstatement, the officer is entitled to emoluments accruing during his suspension. 14. Formal investigation – Period to commence formal investigation shall be stated in the preliminary conference.

15. Termination of final investigation – Formal investigation shall be terminated within 90 days from the start thereof.

16. Rendition of decision – Within 30 days after receipt of the report of the Investigating Authority, and the transmittal of records, the Disciplining Authority shall render a decision.

17. Finality of decision – Decision becomes final after 30 days from receipt thereof.

18. Execution pending appeal - An appeal shall not prevent a decision from becoming final or executory.

19. Penalty - suspension or removal, depending on the evidence. Aggravating or mitigating circumstances may be considered.

20. Suspension – shall not exceed 6 months 21. Removal – considered a bar to the candidacy of the respondent for any elective position. 22. Executive clemency – The President may commute or remove administrative penalties or disabilities.


Disciplinary action against appointive local officials and employees 1. Administrative Discipline – investigation and adjudication of administrative complaints as well as supervision and removal shall be in accordance with civil service law rules and other laws. Results of such investigations shall be reported to the CSC.

2. Preventive Suspension

a. local chief executive may suspend for a period not exceeding 60 days any subordinate employee or official under his authority if the charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty or if there is reason to believe that the respondent is guilty of the charges. b. upon expiration of the period, the suspension is automatically lifted hence the employee or official being automatically reinstated. If the delay is due to the fault of the respondent, the time of the delay shall not be counted in computing the period of suspension herein provided.

3. Administrative investigation – it may be conducted by a person or committee duly authorized by the local chief executive. Hearings on the cases will be conducted and it shall be decided within 90 days from the time respondent shall be notified of the charges

4. Disciplinary jurisdiction – the local chief executive may impose the penalty of removal from service, demotion in rank, suspension for not more than 1 year without pay, fine in an amount not exceeding 6 months salary or reprimand and otherwise discipline officials and employees under his jurisdiction. If the penalty imposed is heavier than suspension of 30 days, the decision shall be appealable to the CSC.

5. Execution pending appeal – an appeal shall not prevent the execution of a decision of removal or suspension of a respondent-appellant Disciplinary jurisdiction of the CSC 1. Scope – all employees of Government branches, subdivisions, instrumentalities, agencies, GOCCs. The CSC is the single arbiter of all controversies pertaining to civil service positions in the government service, whether career or non-career. In investigating complaints against civil servants, the Commission is not bound by technical rules of procedure and evidence applicable in judicial proceedings. When a government body has jurisdiction to hear and decide cases involving specific matters, such jurisdiction is presumed to be exclusive unless proved otherwise.

2. Appellate jurisdiction over administrative disciplinary cases – shall decide on appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than 30 days, fine in an amount greater than 30 days salary, demotion in rank or salary or transfer, removal or dismissal from office. Final orders or resolutions of the CSC are appealable to the CA, through a petition for review.

3. Jurisdiction of heads of departments, agencies and instrumentalities – shall have jurisdiction to investigate and decide matters involving disciplinary action against

officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than 30 days or fine in an amount not exceeding 30 days’ salary.

4. Investigation by a regional director or similar official – may be entrusted to him or similar officials who shall make the report and recommendation to the chief of bureau or department

5. Execution of decision pending appeal – an appeal shall not stop the decision from being executory. In case the penalty is suspension/ removal the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal

6. Reconsideration of a final and executory decision not allowed – the CSC has no power or authority to reconsider its decision which has become final and executory even if the Commission later discovers that its judgment is erroneous. The ratio is grounded on the doctrine of finality of judgment. Mandamus is the remedy to enforce a decision of the CSC that has become final and executory.

7. Power to terminate employment – academic freedom of institutions of higher learning- these institutions are inherently endowed with the right to establish their policies, academic or otherwise, unhampered by external controls or pressure. They have the academic freedom to determine for itself on academic grounds, who may teach, what may be taught, how it shall be taught and who may be admitted to study. Appeal by “party adversely affected by the decision.” Appeals, where allowable, shall be made by the party adversely affected by the decision. The law doesn’t contemplate a review of decisions exonerating officers or employees from administrative charges. Judgment of exoneration is not appealable. In administrative cases, the complainant is a mere witness of the State, and therefore, has no legal personality to interpose an appeal except where respondent failed to question the appeal. Withdrawal of complaint against respondent Loss of interest of complainant doesn’t necessarily preclude or bar the taking of disciplinary action against an officer or employee. 1. Criminal and administrative cases impressed with public interest – cases involving misconduct, nonfeasance, misfeasance or malfeasance in office of officers and employees are of paramount public interest for they relate to public office, which is public trust.

2. People’s faith and confidence in government involved – the withdrawal of the complaint doesn’t have the legal effect of exonerating the respondent from administrative disciplinary action. The issue is not whether the complaint has a cause of action against the respondent but whether the employee charged has breached the norms and standard of public office.

3. Truth and justice, not choice of witness, must rule – general rule is that courts look


with disfavor upon retractions of testimonies previously given in court. The reason is because affidavits of recantation can easily be secured through intimidation or for monetary consideration. Cessation from office of respondent Cessation from office because of death, resignation or retirement neither warrants the dismissal of the complaint against him while he was still in the service nor render said administrative case moot and academic. Procedure in administrative cases against non-Presidential appointees. 1. Commenced against any officer or upon sworn, written complaint of any other person 2. Complaint by another person – submit sworn statements of his testimony and witnesses, documents. If prima facie case is not found to exist – dismissal of the case. If prima facie case exists – notify respondent of charges, in writing, attach copy of complaint with sworn statements and documents. Respondent allowed not less than 72 hours to answer in writing under oath, with supporting statements and documents, and whether he elects a formal investigation if answer is not satisfactory. If answer is satisfactory– dismissal of the case. 3. If respondent does not request formal investigation, one shall still be conducted because merits of the case cannot be decided without investigation 4. Investigation shall be held not earlier than 5 days nor later than 10 days from receipt of answer; finished within 30 days from filing of the charges unless extended by Commission. The decision shall be rendered within 30 days from termination of investigation. The 5-day bar rule is indispensable because it enables the parties to explore possibility of clarifying the misunderstanding. 5. The direct evidence consists of sworn statements and documents without prejudice to presentation of additional evidence deemed necessary but unavailable at the time of the filing. There shall be a right to cross-examination. 6. Either party may avail the services of counsel. There’s a right to subpoena and subpoena duces tecum. 7. The investigation only for purposes of ascertaining the truth and without necessarily adhering to technical rules. The investigation is to be conducted by the disciplining authority. 8. Appeals, where allowable, be made within 15 days from receipt of decision unless petition for reconsideration is seasonably filed (to be decided within 15 days). Notice of appeal filed with disciplining authority, which shall forward records of the case with notice of appeal to appellate authority, within 15 days. Notice of appeal shall state date of decision appeal, date of receipt, grounds relied upon. 9. Petition for reconsideration on the following grounds:

a. newly discovered evidence b. decision not supported by evidence on record c. errors of law or irregularities have been committed prejudicial to the interest of the respondent

Under EO No 26-A, the following regulations are provided: 1. Period for deciding cases or incidents- all contested cases shall be decided within 30 days from the date of submission for resolution; officer’s action is only recommendatory to his immediate superior, he shall submit his recommendation within 20 days from submission of the case and the approving officer shall have 10 days from submission of the recommendation; a case is deemed submitted upon expiration of the period for filing the memorandum, position paper or last pleading; officer charged with the resolution shall submit to his superior within 10 days a sworn Statement of Disposition of Cases; only 1 MR shall be allowed 2. Abbreviation of Proceedings- all administrative agencies are directed to adopt the following in their respective rules

a. amicable settlement, compromise and arbitration b. mandatory use of affidavits and preferred use of deposition if needed c. submit a draft of the decision they seek which states the facts and law upon which it is based, aside from the memorandum d. rules avoiding postponement of hearings or trials

3. Applicability – government agencies, including any department, bureau, board, office, commission, authority or officer of the national government authorized by law or executive order to adjudicate cases Merit System Protection Board. 1. Composition- Commissioner and two associated Commissioners, appointed by the Civil Service Commissioner

2. Powers and Functions

a. hear and decide administrative cases involving officers and employees of the civil service b. hear and decide cases brought by officers and employees who are aggrieved by the determination of the authorities involving personnel actions and violations of the merit system c. take cognizance of complaints affecting functions of the Commission d. administer oaths, issue subpoena and subpoena duces tecum, take testimonies, punish for contempt e. promulgate rules and regulations to carry out the functions of the Board

3. Appellate jurisdiction of the Civil Service Commission- jurisdiction of the Board is


exclusive but the Commission, as the final arbiter on any matter concerning personnel action in the government, is empowered by law to review the decisions of the Board. Preventive suspension. 1. Kinds

a. Pending investigation b. Pending appeal if penalty is suspension or dismissal, and after review, respondent is exonerated

2. Preventive suspension pending investigation – charge against official involves dishonesty, oppression or grave misconduct, neglect of duty, or reasons to believe that respondent is guilty of the charges which would warrant his removal from service. Designation of a replacement is not a requirement for preventive suspension

a. purpose of suspension – prevent the officer from using his position and the powers and prerogatives of his office to intimidate or in any way influence a potential witness or destroy or tamper records, immaterial that no evidence to prove that respondent may use influence on witnesses or tamper with records. It is sufficient that there exists the possibility. b. It is not violative of the constitution because it is not a penalty and the suspended officer/employee remains entitled to the presumption of innocence until his culpability is established. Not being a penalty, the period during which one is under preventive suspension is not considered part of the actual penalty of suspension c. If the investigation is not finished and decision not rendered within proper time – automatic reinstatement; if found innocent of the charges – reinstated

3. The right to compensation where employee is exonerated

a. No payment of salaries during suspension when suspension is pending investigation. There is compensation when suspension is pending appeal in the event that official is exonerated. b. The preventive suspension cannot be considered ‘unjustified’ even if the charges are later dismissed so as to justify the payment of salaries to the employee concerned. Preventive suspension limited to 90 days unless delay in conclusion of investigation due to the fault of the respondent. c. Despite the fact that officer is meted out a reprimand (which is the first offense punishable in violations of office rules), he should be given back his salaries during suspension

4. Preventive suspension pending appeal – entitled to compensation for the period of the appeal if found innocent

a. preventive suspension pending appeal is punitive although considered illegal if respondent is exonerated. He must be reinstated with full pay for the period of

the suspension. If conviction is affirmed, period of suspension becomes part of the final penalty of suspension or dismissal. b. confirmation of dismissal by department secretary is executory pending appeal. Since dismissal remains valid until modified or set aside, the intervening period during which employee is not permitted to work cannot be argued as unjustified suspension

5. Suspension from office under RA 3019, sec. 13 – accused is suspended from office during pendency of criminal case against him. No distinction as to permanent or temporary employee, career or non- career service. Criminal prosecution not abated by an officer’s re-election. Preventive suspension is mandatory upon determination of the validity of the information. Law does not require proof of guilt during pre-suspension hearing. All it secures is adequate opportunity to challenge validity or regularity of the proceedings against him. 6. Pre-condition for suspension – its imposition is not automatic or self-operative. This means that there should be the existence of a valid information, determined at a pre-suspension hearing, whose purpose is to determine the validity of the information and either: suspend and try the case or not suspend and dismiss the case, or correct matters that impair the validity. Once validity is determined, it is the ministerial duty of the court to issue the order for preventive suspension 7. Duration of suspension – it cannot be for an indefinite period or for an unreasonable length of time

a. If the case is decided before 90 days, suspension will last less than 90 days. If case not decided within 90 days, suspension cannot exceed 90 days. There must be automatic reinstatement. Exception: delay caused by the respondent b. Exonerated employee not entitled to salaries unless suspension is unjustified and found innocent of the charges

8. In the case of the PNP – the suspension from office charged with a grave offense where penalty is 6 years and 1 day or more, which will last until termination of the case. Suspension cannot be terminated before termination of the case 9. In the case of local elective officials – 60 days maximum suspension is justifiable as respondent was elected by the people but suspension may be ordered only after preliminary requirements and exchanges have been completed 10. In the case of presidential appointees and other elective officials –If initially justified at first may later raise due process questions if extended for an unreasonable length of time. This principle applies with greater force to elective officials. 11. Where suspension imposed by the Ombudsman – Ombudsman or his deputy may suspend any officer or employee pending an investigation and the preventive suspension shall continue until the case is terminated but should not be more that 6 months, without pay, except when delay due to the fault of the respondent. Reason is to emphasize and implement the authority of the Ombudsman’s Office as mandated by the Constitution.


12. Prior notice and hearing not required – as preventive suspension is not a penalty but only a preliminary step in an administrative investigation 13. Members of Congress covered by RA 3019 – Order of suspension prescribed by RA 3019 is distinct from the power of Congress to discipline its own ranks (Sec 16 (3) Article 6). The power of congress to discipline members is a punitive measure imposed upon determination by Congress upon an erring member. RA 3019 talks about a preliminary, preventive measure imposed for misbehavior of a respondent as a member of congress. Removal and Suspension distinguished. 1. As to duration – the difference between the power to remove and the power to suspend is only one of degree. Suspension is qualified expulsion and whether it’s termed suspension or expulsion, it constitutes either permanent or temporary disenfranchisement. When the suspension of an officer continues until final disposition of a criminal prosecution, it becomes a virtual removal.

2. As to nature – preventive suspension during the period of an administrative investigation is not a penalty in itself

3. As to time of imposition – while preventive suspension is not in a nature of a penalty, removal is the penalty, which may only be meted upon him at the termination of the investigation or final disposition of the case Schedule of administrative penalties. A. Penalties for Grave Offenses 1. Dismissal

dishonesty,

gross neglect of duty

grave misconduct

being notoriously undesirable

conviction of a crime involving moral turpitude

falsification of official document

physical or mental disability due to vicious habits

engaging in partisan politics when holding non-political office

receiving gifts for personal use, given by someone in the hopes of receiving a favor in return

contracting loans of money or property from persons with whom office of official has business relations

soliciting or accepting gifts or anything of monetary value, which may affect functions of his office

disloyalty to the country and the people 2. First Offense – Suspension 6 months and 1 day to 1 year Second Offense – Dismissal

oppression

disgraceful and immoral conduct

inefficiency and incompetence in performing official duties

frequent unauthorized absences or tardiness

refusal to perform official duty

gross insubordination

conduct grossly prejudicial to the best interest of the service

indirectly or directly having financial and material interest (pecuniary or proprietary interest by which a person will gain or lose something) in any transaction requiring approval of office

employment, controlling, owning etc in a private enterprise regulated or licensed by his office unless expressly allowed by law

practice of profession unless authorized by the constitution

disclosing or misusing confidential information to further private interest or give undue advantage to anyone

obtain or use any statement filed for purpose contrary to morals, public policy, etc other than for information dissemination to the general public

B. Penalties for Less Grave Offenses First Offense – Suspension 1 month and 1 day to 6 months Second Offense – Dismissal

simple neglect of duty

simple misconduct

gross discourtesy in the course of official duties

gross violation of existing Civil Service Law and rules of serious nature

insubordination

habitual drunkenness

nepotism

recommending any person to a position in a private enterprise which has regular official transaction with his office unless mandated by law or international agreements

unfair discrimination in rendering public service due to party affiliation or preference

failure to file sworn statements of assets and liabilities, etc

failure to resign from position in private business within 30 days from assumption of office, or divest himself of his shareholdings within 60 days from such assumption of public office when conflict of interest arise

C. Penalties for Light Offenses First Offense – Reprimand Second Offense – Suspension 1 day to 30 days Third Offense – Dismissal

neglect of duty

discourtesy


improper or unauthorized solicitation of contribution

violation of reasonable office rules

gambling prohibited by law

refusal to render overtime service

disgraceful, immoral or dishonest conduct prior to entering service

borrowing money by superiors, lending by subordinates to superiors

lending money at usurious interest

willful failure to pay just debts or taxes due to the government

pursuit of private business without permission required by civil service rules

lobbying for personal interest or gains without authority

promoting sale of tickets not intended for charitable or public welfare

failure to act promptly on letters and requests within 15 days from receipt

failure to process documents and complete action on documents within reasonable time

failure to attend to anyone who wants to avail of services of the office

Cases of dishonesty, graft and corruption, malversation must be decided within 10 days from filing

D. Imposition and Determination of Penalties 1. Offenses under PD 807

a. forced resignation instead of dismissal b. transfer, demotion, fine instead of suspension 1 month and 1 day to 1 year c. fine instead of suspension 1 day to 1 month

2. Offenses under RA 6713 – one penalty for each case (one administrative case which may involve one or more charges) 3. Mitigating and aggravating circumstances may be considered. If found guilty of 2 or more charges, penalty to be imposed would be that corresponding to the most serious charge, the rest considered as aggravating. Second or third offense need not be the same offense previously committed

E. Accessory Penalties 1. Dismissal – carries with it that of cancellation of eligibility, forfeiture of leave credits and retirement benefits, disqualifications for reemployment in government service 2. Forced resignation – forfeiture of leave credits and retirement benefits, disqualification for employment in government service for 1 year. Where resignation contains conditions of disqualifications regarding re-employment in a class of position, respondent shall be disqualified from re-employment in such positions Note: Administrative liability and punishment not a bar to criminal prosecution.

F. Removal of Administrative Penalties or Disabilities In meritorious cases and upon recommendation of the CSC, President may commute

or remove administrative penalties and/or disabilities subject to terms and conditions he may impose. The Sandiganbayan. 1. Cases subject to its jurisdiction (exclusive original)

a. RA 3019 and RA 1379 b. crimes under Title VIII of RPC (ex. Bribery, malversation of public funds) c. Offenses or felonies in relation to office where the penalty is higher than prision correccional or imprisonment of 6 years or fine of 6000 d. civil and criminal cases filed pursuant to and in connection with EO 1, 2, 14, 14-a issused in 1986

2. Officials and private individuals subjects to its jurisdiction - exclusive, original jurisdiction over (a), (b), (c) where one or more of the accused are officials occupying the following positions in the government, whether in an acting, interim or permanent capacity

a. officials of the executive branch occupying positions of regional director and higher, otherwise classified as grade 27 and higher, specifically including:

i. Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads ii. City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads iii. Officials of the diplomatic service occupying the position of consul and higher iv. Philippine army and air force colonels, naval captains, and all officers of higher rank v. Officers of the PNP while occupying the position of provincial director and those holding the rank of senior superintendent or higher vi. City and provincial prosecutors in the Office of the Ombudsman and Special Prosecutor vii. Presidents, directors, trustees, or managers of GOCCs, state universities or educational institutions or foundations

b. Members of Congress and officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989 c. Members of the Judiciary without prejudice to the provisions of the Constitution


d. Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; e. All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. f. Other offenses or felonies whether simple or complexed with other crimes committed in relation to their office by the public officials and employees mentioned in Section 4(a), PD 1606, as amended by RA 7975 g. Civil and criminal cases filed pursuant to and in connection with EO 1, 2, 14, and 14A, issued in 1986.

Note: In case of private individuals charged as co-principals, accomplices or accessories with the public officers, they shall be tried jointly with said public officers in the proper courts, which shall exercise exclusive jurisdiction over them

3. Jurisdiction of ordinary courts – none of the accused on salary grade 27, exclusive original jurisdiction of RTC, MeTC, MTC, MCTC. In the absence of allegation that offense committed in relation to official duty, must be tried in ordinary courts. Jurisdiction of the Sandiganbayan is the specific actual allegation in the Information that indicates the close intimacy between the discharge of the accused’s official duties and the commission of the offense charged. Sandiganbayan – exclusive appellate jurisdiction over final judgments, resolutions or orders of the RTC whether in the exercise of its original or appellate jurisdiction The Ombudsman. 1. Powers, functions, duties of Ombudsman

a. investigate any act or omission of any public official, employee, office or agency when such act appears to be illegal, unjust, improper or inefficient b. direct any such official to perform or expedite any act or duty required by law , to stop, prevent and correct any abuse or impropriety in performing his duties c. direct the officer concerned to take appropriate action against public official at fault, recommend removal, suspension, demotion, etc d. determine the causes of inefficiency, red tape, mismanagement, fraud etc

2. Officials subject to Ombudsman disciplinary authority – has disciplinary authority over all elective and appointive officials of the government including GOCCs, cabinet members, local government except those removable only by impeachment, members of congress and judiciary. Only body authorized to investigate officials removable by impeachment.

By Impeachment. 1. Impeachable officials- President, Vice President, Members of the Supreme Court, Members of the Constitutional Commissions and the Ombudsman Note: An impeachable officer who is a member of the BAR cannot be disbarred without first being impeached

2. Power to initiate and to try impeachment cases- it belongs to the House of Representatives to initiate all cases of impeachment while the Senate sits as court for the trial of impeachment cases. The judgment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines Meaning and Purpose of Impeachment. 1. Defined as a method of national inquest into the conduct of public men 2. Its purpose it to protect the people from official delinquencies or malfeasances – intended for the protection of the State

By abolition of office. 1. Authority with power to abolish- as a general rule, Congress may abolish any office it creates. The power may be exercised by the President or by local governments when said power has been delegated to them 2. Abolition of office even during term of incumbent- the power to abolish may be exercised at any time and even while the office is occupied by a duly elected or appointed incumbent for there is no obligation on Congress or the people to continue a useless office.

a. by abolishing a public office, the incumbent is not deprived of any constitutional rights as there is no contractual right or property interest in the office b. the fundamental principle to civil service employees against removal except for cause doesn’t protect them from abolition in the absence of any provision prohibiting abolition

What constitutes abolition. There must have been intention to do away with it wholly and permanently. There is no abolition where the position is the same one formerly held although it bears a different name. To remove is to oust an officer from office before the expiration of his term, and implies that the office exists after the ouster. Removal from office and termination by abolition of an office distinguished. Removal – there is an office with an occupant who would thereby lose his position,


implying that the post subsists, and one is merely separated therefrom Abolition – doesn’t involve removal; after abolition there is no occupant. No tenure to a non-existent office as the right disappeared with the abolished office. Abolition must not constitute removal without cause. 1. Right to public office not absolute- abolition doesn’t involve removal and therefore he has no right to demand that he be kept on the payroll. There is no such thing as an absolute right to hold office 2. Where abolition done in bad faith- the exception to abolishment is abolishing in bad faith. If the abolishment is void, incumbent is deemed never to have ceased to hold office 3. Requisites of valid abolition: in good faith, not for personal or political reasons or to circumvent incumbent’s security of tenure, not implemented in violation of law. Termination through reorganization. Reorganization – alteration of the existing structure of government offices, including the lines of control, authority and responsibility between them to promote greater efficiency, remove redundancy, effect economy. It may result in the loss of one’s position through removal or abolition of office. It must be for a valid purpose and done in good faith. A finding that reorganization was done in bad faith must be supported by substantial evidence as good faith is presumed. By conviction of a crime. When the penalties (perpetual or temporary absolute disqualification or perpetual or temporary special disqualification) are imposed upon conviction, termination of official relations results as one of the effects of said penalties under RPC is the deprivation of the public office or employment which the offender may have held, even if conferred by popular election. It necessarily vacates the public office held by the offender; conversely, reinstatement should follow acquittal. What constitutes conviction. Conviction means conviction in trial court. It contemplates a court finding of guilt beyond reasonable doubt by a judgment upholding and implementing such finding. There must not only be an adjudication of guilt, but in addition, a judgment whether it imposes a sentence or suspends sentence. In administrative cases, substantial evidence is the rule. Effects of pardon. 1. If granted after conviction, it frees the individual from all the penalties and legal disabilities and restores him to all civil rights. A pardon doesn’t ipso facto restore a convicted felon to public office 2. Such pardon restores his eligibility for appointment to that office. The person

pardoned may apply for reappointment to the office which was forfeited by reason of his conviction and undergo the usual procedure required for a new appointment

a. A pardon of a public officer merely removes the disqualification from holding public employment but it cannot go beyond that as public office is public trust b. A pardon doesn’t extinguish the civil liability of the grantee arising from the crime he has been convicted of

By recall. An elective official may be removed at any time during his term by the vote of the people at an election called for such purpose or at a general election Purpose and nature of the power of recall. 1. Effective speedy remedy for removal- speedy remedy for the removal of an official who isn’t giving satisfactory service to the public 2. It is political in nature and not the exercise of judicial function 3. It is essentially the power of removal exercised by the people Recall of local elective officials. 1. By whom exercised- shall be exercised by the registered voters of a local government unit to which the local elective official subject to recall belongs 2. Initiation of the recall process

a. may be initiated by a preparatory recall assembly or by the registered voters of the local government unit b. there shall be a preparatory recall assembly per province, city, district and municipality c. a majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding. For provincial, city or municipal officials, recall shall be validly initiated through a resolution adopted by majority of all the members of the preparatory recall assembly d. recall of any elective provincial, city, municipal or barangay official may also be initiated upon petition of at least 25% of the total number of registered voters in the local government unit concerned

i. A written petition shall be filed with the Comelec through its office in the local government unit concerned. The Comelec shall cause the publication of the petition for a period not less than 10 days nor more than 20 days for the purpose of verifying the authenticity of the petition ii. Upon lapse of period, Comelec shall announce the acceptance of


candidates to the position and prepare the list afterwards iii. Election on recall- upon filing of a valid resolution or petition, the Comelec shall set the date of the election on recall, which shall not be later than 30 days after the filing in case of the barangay, city or municipal officers and 45 days in the case of provincial officials. Officials sought to be recalled are automatically considered candidates iv. Effectivity of recall- shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall v. Prohibition from resignation- the official sought to be recalled shall not be allowed to resign while recall process is in progress vi. Limitations on recall

1) an official shall only be subject to one recall election during his term 2) no recall shall be held within one year from the date of the official’s assumption of office or one year immediately preceding a regular local election

Note: All expenses incident to recall are borne by the Comelec

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